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February 14, 2012 12:29 pm

Two Legal Decisions, Both Unjust

avatar by Ed Koch

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Speedy Limit Sign. Photo: wiki commons.

Not long ago, I read an article in the New York Post reporting a decision by the Appellate Division First Department confirming a referee’s recommendation in a case brought by the Departmental Disciplinary Committee against Elliott Dear, an attorney.  The Committee recommended that Mr. Dear’s license to practice law in the State of New York be suspended for six months.

The facts concerning the charges are reported in detail in the court papers, which I decided to review.  Those facts are:

This disciplinary proceeding arises out of a traffic stop which occurred in New Jersey on July 5, 2007.  Respondent, who is an orthodox Jew, was stopped for speeding by a New Jersey State Trooper and given a summons for going 85 mph in a 55 mph zone.  Unbeknownst to respondent and his wife, who was in the passenger seat, the stop was videotaped from a camera in the trooper’s car.  Further, a microphone on the trooper’s uniform recorded everything that the trooper said, although it did not capture respondent’s statements.  Six days after receiving the speeding ticket, respondent wrote the following letter to the traffic court on the letterhead of the law firm where he worked as an associate:

“‘Ladies and Gentlemen: This ticket shall be dismissed immediately since – a.  there was not speeding and the officer refused to show me evidence that there was (i.e. – ‘not guilty’); b. even if there was speeding (which there wasn’t) – I was in a 65-mph zone NOT a 55 mph zone; and c. The officer called me a ‘jew kike’ – and this prejudice obviously was the cause for the ticket.  I am a licensed attorney in NY State and will be representing myself in this matter (contact details enclosed).  Eliott Dear’

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“The traffic court set the matter down for a hearing and the letter was forwarded to the New Jersey State Police, which in turn referred it to Sgt. Alexander Koopalethes of the Internal Affairs Investigation Bureau for an investigation.  Sgt. Koopalethes attempted to reach respondent by telephone for two months and, only after a partner at respondent’s law firm directed respondent to return his call, did Koopalethes hear from him, and have the opportunity to conduct a telephone interview.  In the meantime, in August 2007, respondent defaulted on his traffic court hearing date and a contempt of court warrant was issued against him with ‘bail set at $265 (the fine for the violation).  During his telephone interview with Sgt. Koopalethes, which was recorded, respondent at first equivocated about whether the trooper directed an ethnic slur at him, but after he was pressed to remember if a slur was used, he explained that since he wrote the letter contemporaneously to the incident, it was likely that the trooper said it.  The interview continued and respondent added that the trooper dismissed respondent’s proffered explanation for speeding, namely, that his pregnant wife needed a bathroom, as more baloney from ‘you guys,’ which respondent stated referred to orthodox Jews.  Respondent further recounted that the trooper displayed a demeaning attitude toward respondent and his wife.  However, none of this information was supported by the video or audio recordings made during the traffic stop.  In April 2008, 10 months after the traffic stop, the internal investigation was completed and the trooper was exonerated of all charges.  In July 2008, the New Jersey State Police filed a complaint against respondent with the Disciplinary Committee wherein it was revealed that the traffic stop had been recorded.  In Agusut 2008, respondent was advised of the complaint and in September 2008, more than one year later, he paid the $265 fine for the speeding violation.“

When I read the news report and later the court file, I was horrified.  Why would the referee proposing the recommendation and the court affirming it be so lenient?  In my opinion, an attorney who lies on behalf of a client or on behalf of himself should be permanently disbarred, unless there are overwhelming mitigating circumstances which I looked for in the record and could not find.

The only potentially mitigating circumstances I could find in the record were as follows:  “In support of mitigation, respondent presented testimony from his treating psychiatrist, who diagnosed respondent as suffering from ‘borderline personality disorder, generalized anxiety disorder, attention deficit disorder, major depression, and narcissistic personality.’  He stated that at the time of the incident, respondent was experiencing a great amount of stress due to his working long hours at a job he did not like, marital tension, and substantial difficulties with respect to the oldest of his three children who, like respondent, suffered from ADHD.  In the psychiatrist’s opinion, the disorders that he diagnosed respondent having, combined with the aforementioned stress, ‘were the primary factors in making [respondent] vulnerable to impulsive acts.’  The psychiatrist changed respondent’s medication and he, along with a psychologist specializing in dialectical behavioral therapy (DBT), recommended respondent undertake an intensive three-day-a-week outpatient DBT therapy regimen at the Columbia Day Program.  Respondent completed a two-month program at Columbia while also seeing his psychiatrist twice a week.”

Should someone suffering from these disorders be practicing law representing the interests of another person?  I don’t think so.  At best, after permanently disbarring such an individual who had lied as Eliott Dear had done, the court could at a later time hear Dear’s application for reinstatement and decide then whether or not to allow it.  I do not believe that justice was done in this case.  Fortunately, the state trooper, who could have lost his job and been marked as a bigot for life, had irrefutable proof he hadn’t said the anti-Semitic slurs that he was charged with.

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Alan Turing, a mathematical genius, was responsible for breaking the German military code in World War II.  The code was considered unbreakable because of its random selection of code words using the Enigma machine.  Turing will be honored worldwide by the marking of the 100th anniversary of his birth this year, 2012.  The British Royal Mail Service has announced that it will issue a British stamp in his honor this year.

Turing was the lead mathematician at Bletchley Park, Britain, assigned the job of breaking the German code.  Breaking the code allowed the Allies to substantially reduce the effectiveness of German submarines, which were then sinking the merchant ships delivering supplies from the United States to England during World War II.  Dozens of American ships were torpedoed within sight of the east coast of the United States.  Wikipedia has a 21-page salute to Turing.  It reported, “In 1999, Time Magazine named Turing as one of the 100 Most Important People of the 20th Century for his role in the creation of the modern computer and stated: ‘The fact remains that everyone who taps at a keyboard, opening a spreadsheet or a word-processing program, is working on an incarnation of a Turing machine.'”

Turing’s life had been celebrated in a Broadway play which ran from November 1987 to April 1988 entitled “Breaking the Code” in which he was played by Derek Jacoby.  I saw the play.  It was poignant and brilliant.  Those attending learned Turing was homosexual and arrested and convicted for having homosexual sex with a consenting adult, which was then illegal.  As I recall the play, Turing pressed charges against the young man for stealing from Turing’s home and when questioned,  freely admitted to the officer that he and the young man had had sex.  For that admission, Turing was charged with and convicted of gross indecency.  Wikipedia reports: “In August 2009, John Graham-Cumming started a petition urging the British Government to posthumously apologize to Alan Turing for prosecuting him as a homosexual.  The petition received thousands of signatures.  Prime Minister Gordon Brown acknowledged the petition, releasing a statement on 10 September 2009 apologizing and describing Turing’s treatment as ‘appalling.'”

Wikipedia further reported, “In December 2011, William Jones created an e-petition requesting the British Government pardon Alan Turing for his conviction of ‘gross-indecency’:  ‘We ask the HM Government to grant a pardon to Alan Turing for the conviction of ‘gross indecency’. In 1952, he was convicted of ‘gross indecency’ with another man and was forced to undergo so-called ‘organo-therapy’ – chemical castration. Two years later, he killed himself with cyanide, aged just 41. Alan Turing was driven to a terrible despair and early death by the nation he’d done so much to save. This remains a shame on the UK government and UK history. A pardon can go to some way to healing this damage. It may act as an apology to many of the other gay men, not as well known as Alan Turing, who were subjected to these laws.’  The petition gained over 21,000 signatures, but the request was declined by Lord McNally.  ‘A posthumous pardon was not considered appropriate as Alan Turing was properly convicted of what at the time was a criminal offense. He would have known that his offense was against the law and that he would be prosecuted. It is tragic that Alan Turing was convicted of an offense which now seems both cruel and absurd-particularly poignant given his outstanding contribution to the war effort. However, the law at the time required a prosecution and, as such, long-standing policy has been to accept that such convictions took place and, rather than trying to alter the historical context and to put right what cannot be put right, ensure instead that we never again return to those times.'”

How did I get interested in this matter, not having known of all of these efforts to posthumously honor Alan Turing?  I was reading The Times of February 8th and there in a very small article it was reported, “In the centenary year of his birth, Alan Turing, the British mathematician and cryptanalyst regarded as one of the central figures in the development of the computer and artificial intelligence, has been denied a formal pardon by the government of Prime Minister David Cameron for his conviction in 1952 on charges of homosexuality, then a criminal offense in Britain.  An e-mail petition for a pardon for Mr. Turing, who committed suicide by eating a cyanide-laced apple in 1954, when he was 41, has drawn worldwide support from scientists and others. But Tom McNally, a minister of state for justice, told the House of Lords that the Cameron government stood by the decision of previous governments not to grant a pardon for Mr. Turing’s conviction for gross indecency.  Mr. McNally noted that the former prime minister, Gordon Brown, had issued “an unequivocal a posthumous apology” to Mr. Turing in 2009, but he said that Mr. Turing “would have known” that he was committing an offense under the law as it stood at the time.”

This is not justice and should not be the final disposition of this matter.

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