JUSTICE WILLIAM ERLBAUM: The American verdict of 'not guilty' can indicate one of two things,…Innocence, or the case is not proven. In the case of these [felony assault counts], the case has not been proven.
Agree with the verdict or not, Justice Erlbaum’s words, with their implicit acknowledgment of what he likely thought actually occurred (even if he did not think it beyond a reasonable doubt) are, since the matter’s inception, among the few things said about the Monserrate case by someone who has attained their job by election, which are actually at least arguably defensible.
And before I begin my rant, let me make clear that the anathema extends to non-elected members of the extended political class as well.
For instance, this gem appeared on both The Daily Gotham and The Albany Project:
“If you haven't been paying attention, this is what happened: a Democratic state Senator, one Hiram Monserrate, was found guilty of slashing his girlfriend in the face last year before Christmas.”
Actually, the precise verdict on that particular charge was “not guilty,” even if the judge who himself rendered the decision seemed to question it.
But, perhaps I’m being too harsh. After all, the posts on TDG and TAP are written by amateurs (albeit self-important ones). But, as Jimmy Vielkind proved today on Politicker NY, the professionals may be even worse:
“Senator Hiram Monserrate, a Queens Democrat who had just been convicted of misdemeanor assault for dragging his girlfriend to a hospital after what his lawyer convinced a judge was an accidental cutting of her face with a piece of glass.”.
Actually Jimmy, as the Judge’s words make explicitly clear, Monserrate’s lawyer, who was obligated to prove exactly nothing, apparently did just that. He did not prove an accident (ERLBAUM: There are only two people who have actual knowledge of what happened in that apartment. That is Karla Giraldo and the defendant.), –rather, the DA failed to prove, beyond a reasonable doubt, that a crime took place.
Let us remember what reasonable doubt is:
“The law recognizes that, in dealing with human affairs, there are very few things in this world that we know with absolute certainty. Therefore, the law does not require the People to prove a defendant guilty beyond all possible doubt. On the other hand, it is not sufficient to prove that the defendant is probably guilty. In a criminal case, the proof of guilt must be stronger than that. It must be beyond a reasonable doubt.
A reasonable doubt is an honest doubt of the defendant's guilt for which a reason exists based upon the nature and quality of the evidence. It is an actual doubt, not an imaginary doubt. It is a doubt that a reasonable person, acting in a matter of this importance, would be likely to entertain because of the evidence that was presented or because of the lack of convincing evidence.”
But it was not only the press which engaged in careless and/or willful foolishness; advocacy groups added their own worthless two cents. NOW-NYS, in the manner of Alice in Wonderland, began its efforts in this case by making sentencing recommendations before there was a verdict. In some past cases, both civil and criminal, NOW has undertaken efforts like petitioning a court, as if it believed that justice was somehow a matter to be decided by plebiscite. Now NOW pronounces:
“So what message does this send to the women of New York State? Why it boldly declares that clear, documented, dramatic evidence is not enough to convict abusers. And while women in New York continue to fear telling the truth about abuse, abusers walk free. After all, fear of retribution is a major cause of women not reporting abuse and/or women retracting such reports that are made.”
Perhaps a better message to draw from the case is that the Courts help those who help themselves, and if one collaborates with one’s oppressors, the result will be to strengthen them; in other words, empowerment begins at home.
It may be unreasonable to expect battered women to testify against their oppressors (although they do so everyday), but is it really more unreasonable than expecting a conviction in a case for a crime which the only two witnesses denied even occurred?
But once again, it is the electeds who have taken the cake.
As I’ve noted previously, State Senator Marty Golden has been a veritable passion play in making this case a personal crusade–at least during those intervals where he finds such a posture and such posturing convenient.
Jumping the gun on the fact a trial has yet to take place is one thing; Golden wanted to mete out punishment to Monserrate before he was even indicted. Cynics like me noted the proximity between Golden’s call for Monserrate not to be seated and the potential such non-seating would create for a deadlock in the ability of the Senate to organize itself, and also noted Monserrate’s then-recent departure from a claque of creeps then trying to rent themselves to the Senate’s highest bidder. Strangely, when the Republicans actually took tentative control of the Senate with Monserrate’s help, Golden’s resolution to unseat him failed to see the light of day.
But let’s be clear, Golden was not alone. Eric Adams, like Golden (and Monserrate) an ex-cop, decided that he too was therefore worthy of being both Judge and Jury, and started spinning bizarre conspiracy theories in which the NYPD was attempting to publicly humiliate the “innocent” (not merely “not guilty”) Monserrate to punish him for his efforts to reform the Police Department.
And now, a verdict has opened new cans of worms in what was formerly only a den of snakes.
In the wake of Monserrate’s conviction for a misdemeanor assault, there have been calls for Monserrate’s resignation and/or removal from the Senate. Supporters of the anti-Monserrate grass-roots movement which has sprung up in the wake of the verdict tend to conflate these two as if they are one and the same, but they are not. For instance, one notices that Chuck Schumer and many (though not all) of the others calling for Monserrate’s resignation have not called for his expulsion.
I think Monserrate should resign. I think he is an embarrassment to the Senate (which is a pretty miraculous achievement, given the context), to the State and to the Democratic Party.
But I’m biased. The first time I mentioned Monserrate on this blog, I called him a “showboating bag of wind.” As I previously noted, I first called out Pedro Espada, Ruben Diaz, Carl Kruger and Monserrate as potential Republican collaborators in May of 2007 and many times thereafter until they proved me correct. I bemoaned losing the politically reliable (if somewhat alcoholly irresponsible) John Sabini at the time the Working Families Party and the Queens Democrats were rushing to support Monserrate and successfully force Sabini out of his seat (Imagine if WFP’s efforts against liberals Marty Connor and John Sabini were instead expended against the likes of Carl Kruger).
Frankly, I’d join a movement calling for Monserrate’s resignation (and Kruger’s, Diaz’s and Espada’s) even without his conviction for an act of domestic violence (an issue in which I’ve been involved both professionally and as an activist).
But I’m not so sure I support expulsion; the most I can say for now is that I support an expulsion inquiry.
Had Monserrate been convicted of a felony, he would have automatically lost his seat by operation of law. But the same does not apply in the case of a misdemeanor.
There is no law which states a Senator must be expelled for conviction on a misdemeanor. Conversely, there is no law that says a Senator can’t be expelled for such a crime.
The State’s Legislative Law does provide "each house has the power to expel any of its members, after the report of a committee to inquire into the charges against him shall have been made."
But there are no standards, because in living memory, it has never come up. In fact, to the extent that lack of action serves as precedent, the precedents go the other way.
I believe the last State Senator convicted of misdemeanor was Marty Markowitz. In 1988, Markowitz, indicted for campaign related felonies, pleaded guilty to misdemeanor charges of illegally hiding the sources of $25,000 in political contributions to his unsuccessful 1985 campaign for Brooklyn borough president. He was fined $7,500 and sentenced to perform 75 hours of community service.
Markowitz, described the crimes as ''campaign technicalities.''
In actuality, Markowitz admitted to depositing in his personal checking account 46 money orders, from persons of dubious name and address, totaling $10,000, that he received from Edmund Lee, treasurer of the HYFIN (appropriately, an acronym for “Help Your Friend In Need”) Credit Union, which was the subject of a massive federal investigation as the result of a series of scandals which led to its collapse.
Markowitz admitted in court that he then wrote a personal check for $10,000 to his campaign committee. He was also accused of personally receiving a $15,000 check drawn on the HYFIN Credit Union as a loan for the 1985 campaign. Again, he wrote a personal check to the committee for the amount. The loan was never repaid. By these subterfuges, an attempt was made to mask the true source of the money, in violation of the election law.
Although the allegations did not directly implicate Markowitz’s Senate duties, they certainly begged that question, and one would have thought at least a cursory investigation would have been undertaken to make sure that there had been no abuse of Markowitz’s public position.
But the Senate was controlled by Republicans and Markowitz was a Democrat, and those were different times. The Senate’s Majority Leader, the gentlemanly Warren Anderson, chivalrously deferred the matter to his Democratic counterpart, Fred Ohrenstein, then himself under indictment, and not particularly interested in making an example of anyone.
To the extent the Senate has meted out discipline, it has always been an internal party matter. When first indicted, Monserrate was deprived of his lulu, and apparently accepted this, until Kevin Parker also was indicted for a felony, but having already spent his disbursement, was not required to return it. The resulting Monserrate tantrum helped spur the aforementioned coup and a two-month long leadership crisis.
In recent times, the only discipline meted out for an actual conviction came after Ada Smith was accused of attacking an aide with a hot caffeinated beverage and was then convicted only of 2nd degree harassment, a violation, rather than a misdemeanor.
Given the bad publicity from multiple incidents of alleged violence, and the fact that the conviction was for acts committed in the course of her public duties, Smith’s leader, David Paterson, took away Smith’s leadership titles and her lulu.
By contrast, John Sabini, accused of drunk driving on his own time, was given no official punishment after he pleaded guilty to a violation, and was merely manipulated out of the Senate, mostly for the far more serious crime of being a white elected official from a minority district.
Notably, in the Assembly, Roger Green, convicted of the misdemeanor of charging the State for reimbursements for transportation to Albany he’d gotten for free, was told by Shelly Silver that either his signature or his brains would be on his resignation papers. But, it should be noted that Green was convicted of official misconduct.
Is the Senate bound by its own lax precedents? I think not, though I am not speaking form a legal perspective, only a political one.
A big part of the campaign which helped the Senate Dems achieve their long sought after majority status was a call for a change in the Senate’s ethical climate. Though once in office, the actual efforts at reform have been disappointing, it is clear that the Sen Dems ran on the idea that the old rules would be re-examined and subjected to change. The fact that the Republican controlled Senate turned a blind eye to the misdemeanors of their membership should not bind a Democratically controlled Senate which has ostensibly and ostentatiously committed itself to change.
That being said, it seems inadvisable to enact such a change on a case by case basis to suit political convenience.
As NOW puts it, though from an entirely different perspective, “So the question now is: will the Democratic leadership turn a blind eye for political expediency, or will they do the right thing?”
If one is going to punish convictions for misdemeanors, are they all to result in expulsion? Surely, violent misdemeanors would seem to merit consideration for the harshest treatment, but those involving dereliction of public duties would still seem to take highest priorities.
And, though it might not be relevant to this hearing, one must ask, should such inquiries be restricted merely to criminal matters? Surely there may exist other reasons–other forms of rmisconduct short of criminality, for which to consider removal of a member.
And while they're at it, they can also consider what other sanctions short of removal may be appropriate for the various forms of misconduct they may encounter in the future.
Then there is the matter of the hearings. What sort of evidence is acceptable? In many administrative proceedings, hearsay is admissible; how about here? There has been a trial; how is the record to be handled?
What is the standard of proof? This is not a criminal proceeding; is proof going to be beyond a reasonable doubt, or something lesser? Clear and convincing evidence, or a preponderance?
And the talk of what standards will be used virtually begs the question of whether events relating to charges which resulted in an acquittal will be in some form revisited (as they sometimes are in civil proceedings) using a different standard of proof.
Civil and criminal proceedings on the same incidents, with their differing standards of proof, have sometimes produced different results; could that be the case here?
And what of the fact that Monserrate’s conviction is for event which occurred before he became a Senator. Certainly, no one has held prior misdemeanor convictions against Ruben Diaz or former senator Efrain Gonzalez; does the fact that the conviction came after Monserrate was sworn in make it relevant, or it is beyond the Senate’s ken?
And then there is the matter of judicial scrutiny, which will surely follow any sanction which dissatisfies Monserrate. Both the process set up by the Senate and the procedures followed in this one matter must be carefully tailored to pass judicial muster.
This is very serious stuff. Any results could have unintended and perhaps even unjust consequences in future cases. Justice in this case would be nice as well.
One would think the gravity of the situation would compel Senators to behave in a serious manner. But, despite the fact that the Senators have known for awhile that they are likely to serve as a de facto court of inquiry, Senator after Senator has declared a position on the ultimate results before a hearing panel was even constituted. In this regard, “reformer” Liz Krueger is just as remiss as slimebucket Pedro Espada.
Of those who offered comments, only those like Jeff Klein, who called for an inquiry, but did advocate its ultimate result, seem to understand their duty in this matter.
Not surprisingly, those members who’ve ever faced indictment (perhaps not coincidentally, Monserrate’s amigos Carl Kruger, Espada and Diaz; plus Kevin Parker) are unanimously in Monserrate’s corner. Not surprisingly, in the sea of stupidity involving this case, Parker continues his consistent record of saying the first dumb thing which makes the short trip between his limited mind and his prematurely ejaculating tongue. Not unexpectedly, Parker finds expelling a Senator convicted of a violent misdemeanor to be a frightening prospect.
Still, he goes above and beyond the call of duty; behold:
“[the Senate will have engaged in ] double jeopardy by punishing (Monserrate) a second time."
But surely that makes no sense. If convicted instead of a felony, Monserrate would lose his set by operation of law.
Is Kevin saying that that is double jeopardy as well?
And when a cop in a case like Amadou Diallo‘s is acquitted of police brutality, because of a finding that his conduct was not criminal, is Parker saying that the officer should then be exempt from departmental discipline for non-criminal misconduct and/or incompetence which may have or may in the future endanger the public?
Is Kevin saying that that is double jeopardy too?
And then there is the matter that Monserrate is appealing his conviction.
"I don't see how it helps this conference or the state of New York to rush to judgment when the legal system hasn't rendered a final verdict,"
Tell that to Mel Miller, Kevin. You might remember him, since he once represented a good deal of your district in the Assembly, where he served as Speaker until convicted of a felony. Despite the fact that Miller also appealed his conviction—successfully, in fact, he was forced to forfeit his position by operation of law.
Are you advocating a double standard, Kevin, or do you think felons should also be allowed to keep their positions until they’ve exhausted their judicial remedies?
Get a clue, Kevin–while Monserrate does have the right to appeal, his presumption of innocence ceased to exist the day he was convicted.
It is time for the politicians who serve in the New York Senate to just this once go against all their instincts and behave like grown ups.
Hell, it might even come in useful when dealing with budgetary issues.