A different anniversary

I’ve been thinking a lot lately about a deadly act of terror. I’ve been thinking of the citizens paralyzed with fear and the suspect (apparently of Middle-Eastern heritage) positively identified by eyewitnesses and linked to the act by forensic evidence. I’ve been thinking of the subsequent trial and what the Attorney General of the United States did to defend America. But that’s not what I thought of in the wee hours of Monday morning when I awoke to rapid-fire bangs.

The early hour at which New York’s construction crews get to work never ceases to amaze me — especially when they use jackhammers, their venue of employment is under our bedroom window, and it’s still dark out. I’m also astonished at how late they work and how they sometimes work on weekends, too.

Last Saturday we went to a concert about 120 miles away. It took us less than two hours get from our door to the performance and a similar amount of time to return to the Henry Hudson Bridge, which connects the Bronx to Manhattan Island. Then, due to construction work, it took almost as long to travel the last six miles home.

Manhattan is not a car-friendly place. A popular book for natives, Manhattan Block by Block, is an atlas that lists (among other things) every park, playground, police station, post office, school, and theater. It does not list our few gas stations. The page called “Driving in New York” begins, “The best advice to drivers is ‘don’t.'”

It would have been faster to abandon the car, walk to the nearest subway, and zip home underground. Alas, that wasn’t an option.

We New Yorkers love our subways, and, thanks to our hard-working construction crews, we have them all back now. The line that passed directly below the World Trade Center, which was supposed to take years to repair, reopened in September. That’s good news for those of us who travel downtown, which, at some point, includes just about every adult citizen of New York County (Manhattan Island and a sliver of the mainland that was on our side of the water before a shipping canal).

Like most adult citizens of New York County, we own neither a car nor a house. And, like most adult citizens of New York County, we have served on jury duty downtown.

These days, it’s almost impossible to be exempted. Despite being our mayor at the time and previous employment as a zealous prosecutor, Rudy Giuliani once served on a New York County jury. It seems that every Manhattan jury pool has at least one celebrity in it.

There are two types of juries in New York’s criminal-justice system. They are named for their sizes. The petit jury is the one with which most people are familiar: one trial, open courtroom, prosecution and defense attorneys, rules of evidence, 12 jurors, unanimity, reasonable doubt, etc.

A New York grand jury has 23 people. A simple majority of 12 is enough to indict. All of the proceedings are secret. Leading questions and hearsay are common. No witness is ever cross-examined. Reasonable doubt doesn’t matter.

Over the course of a month-long term, a single Manhattan grand jury might easily hear 150 cases. And it will never once hear from a defense attorney.

Whenever I serve on petit-jury duty, I am impressed by what appears to be the fairness of our court system. It begins in the room where we hang out waiting to be called for trials. A video presentation explains why juries are important. It also lets us know that real trials are not necessarily like those we’ve seen in movies and on TV. In every episode of Perry Mason, for example, the master defender got someone on the witness stand to confess to murder, exonerating Mason’s client.

Surprise! It doesn’t work that way.

During jury selection, the prosecution and defense attorneys go out of their way to ask us to be fair. A prosecutor will typically tell us, “If I have not proved the case against the defendant beyond a reasonable doubt, I want to be sure that you will be able to vote ‘Not Guilty.'” Similarly, the defense attorney will tell us that, if the prosecutor proves the case, we are to vote “Guilty.”

The judges all seem to bend over backwards to be fair, too. Once, when I was on a jury, the judge gave us a mysterious day off. Only after we’d turned in our verdict did he inform us that the day was holy in the defendant’s religion, and he didn’t want that to influence us.

My fellow jurors seem to take their duty to be fair very seriously. We have different opinions, of course, but we do deliberate, count-by-count, before agreeing on a unanimous verdict. The process may be tough (on all concerned), and it may be long, but it is, to the best of our abilities, fair.

That’s petit-jury duty. Grand-jury duty is something else entirely. I find grand-jury duty very depressing. My first time, I went to a novelty wholesaler and bought a gross of laugh bags to cackle hysterically at me each evening, in an attempt to cheer myself up.

There’s no difference in New York between grand-jury duty and being on a grand jury. Once a fingerprint check allows you to serve, you’re on. There is no grand-jury selection process involving questions.

Normal grand juries hear case after case: robbery after robbery, murder after murder — burglary is about as light as it gets. A case might last all of five minutes. And it’s all one sided. The prosecution presents its view; there is never any defense. There’s not even a judge in the room.

Prosecutors are so sure of a New York grand jury indicting that they liberally allow days off for grand jurors. It takes only 12 to indict; usually they’ll get all 23. After all, a grand jury delivers only an indictment; a trial (or plea bargain) follows.

When he was New York’s top judge, Sol Wachtler once famously quipped that any reasonably competent prosecutor could get a New York grand jury to indict a ham sandwich. That was in October 1985. A few years later, Wachtler, himself, was indicted (and later convicted) of crimes related to harassment of his former lover.

Some years ago, I briefly became the center of attention at a party in Brooklyn. Had I told a group of astronomers that a meteorite shaped like Galileo’s head had crashed through the street and landed at my feet in a subway car, it might not have created as much interest and disbelief as what I did say.

Many of the people at the party were public defenders. All I said was that I had served on a grand jury that had chosen not to indict on a particular charge. They were astonished.

We had decided there was insufficient reason even to indict, let alone convict. The prosecutor wasn’t happy with us.

The people who prosecute cases here are routinely called prosecutors. They even refer to themselves that way. But that’s not what their actual titles are. They are, typically, assistant district attorneys. When Rudy Giuliani (before he became mayor of New York) gave up the third-highest post in the Justice Department so he could prosecute cases, his title was United States Attorney.

District attorney or U.S. attorney doesn’t sound like an adversarial title. Prosecutor does. A government attorney might be interested simply in seeing that justice is done. A prosecutor sounds like a person out to get someone.

Just this month, Giuliani was asked his feelings about the “perp walk.” It’s the practice of parading an arrested suspect before members of the press. Giuliani thought the deserved embarrassment was an important deterrent to potential white-collar criminals. But there’s a problem.

“Perp” is short for “perpetrator.” A perpetrator (in the criminal sense) is a person who commits a crime. But the person paraded in the perp walk is the person arrested by the police — a person properly called a suspect, who might or might not be guilty of criminal activity. Even master prosecutor Rudy Giuliani ended up with some famous post-perp-walk acquittals, including former Miss America Bess Myerson and former Philippines First Lady Imelda Marcos.

The suspect is supposed to be considered innocent unless proven guilty. Some prosecutors seem to believe the phrase is “innocent until proven guilty.” And to a few, perhaps, it’s simply “innocent unless arrested.” Certainly, some media outlets seem to promote the last view, often going beyond that to “innocent unless investigated.”

The perp walk is just one small example of a symbiotic relationship between the criminal-justice system and the media. That relationship was explored in Ben Hecht’s and Charles MacArthur’s The Front Page, a play so funny that it was made into a hit movie — four times. What is at the core of the plot of that hilarious story? It’s the impending execution of a cop killer.

There are bumper stickers on seemingly all New York City police vehicles offering a $10,000 reward for information leading to the conviction of someone who shoots a police officer. A toll-free number is offered, 1-800 COP SHOT.

I’ve never been able to understand such reward offers. At whom are they aimed? Are they an introduction to the economics of the Information Age? Do not divulge anything without being paid for it? Are we trying to train people to ask for a reward for performing a civic — and moral — duty? Is the idea that $10,000 will convince a criminal to rat on an associate? Or might it provide an excuse for a criminal to frame someone?

The median household income in New York City in 2000 was $38,293 (our wealthiest borough in terms of household income was Staten Island). Our per-capita income was $22,405. The CIA estimates the annual per-capita purchasing power in Afghanistan in 2000 to have been $800. And the U.S. State Department has been offering — and informing Afghans of — a $25,000,000 reward for information leading to the capture of Osama bin Laden. That would be like a $700,000,000 reward in New York City. To paraphrase former Senator Everett Dirksen, that’s pretty close to real money.

It’s rare to hear a discussion of the pros and cons of reward offers. The other criminal-justice issue at the core of The Front Page, capital punishment, is more often debated. Some people feel it is morally imperative for the state to execute murderers. Others feel it is morally repugnant for the state to take a life.

Illinois governor George Ryan is not among the latter group. He campaigned in favor of capital punishment. But he has since called a halt to executions in his state.

It’s not that he has decided that it’s immoral for the state to kill. As best I know, he still believes executing a murderer is a good idea. But he’s opposed to executing innocent people. Governor Ryan noted that, after capital punishment was reinstated in Illinois, more people sentenced to death were later exonerated of their crimes than were executed. Sometimes journalists found the exculpatory evidence; sometimes it was students. Open trials provided the impetus.

The Front Page certainly isn’t the only movie to have featured capital punishment. In some the audience is led to believe a guilty person is being executed, in others an innocent one. The latter are part of a genre called “Wrong-Man” films, although in most of those the mistake is discovered and rectified before the execution. Even that’s pretty horrifying.

In Alfred Hitchcock’s 1957 movie The Wrong Man, there’s not even the threat of an execution. The charge is merely robbery, but the accused man’s wife nevertheless cracks under the strain.

The Wrong Man was based on a true story. So was Elia Kazan’s 1947 movie Boomerang! Actually, it was based on a story about a true story, and it was embellished with a side plot about political corruption, which Kazan later said he wished he’d played up more. In my opinion, the actual facts of the case are more amazing than the fictionalization.

On the evening of February 4, 1924, Father Hubert Dahme was taking a walk through Bridgeport, Connecticut. At about 7:45, he passed the New Lyric Theatre, where Ethel Barrymore was about to perform in The Laughing Lady. Someone shot him behind the left ear at close range with a .32-caliber bullet.

The theater crowd was so stunned that no one even thought to call an ambulance for ten minutes. Father Dahme was pronounced dead at St. Vincent’s Hospital two hours later.

The mayor immediately offered a $1000 reward (an ad at the time in one of the local papers offered men’s suits for less than $3 each). He said he’d guarantee it with a personal check until he could get the common council to approve it. A contractor offered another $500; so did one of the local newspapers. The church committee came up with another $500 and hoped to get that up to $1000.

The police assigned 30 detectives full-time to the case. There were many leads. None panned out.

The people of Bridgeport were terrified. They were accustomed to reading about murders in their local papers, but those were always associated with some obvious cause: robbery, love triangle, grudge, etc. What appeared to be a senseless murder was an act of terror. And no one had been caught.

A week after the murder, in Norwalk, Connecticut, a police officer found someone wandering the street at 1:20 in the morning, searched him, and found a gun. It was a five-shot .32-caliber revolver with one chamber empty.

The man was charged with carrying a concealed weapon. He was sentenced to 90 days plus $50. He had no money, so the jail term was increased.

The jailer asked the man where he was from. The man said he’d lived recently in Bridgeport. The jailer alerted the Bridgeport police.

Many witnesses positively identified the man as the perpetrator. The most convincing was a woman who’d waited tables at a restaurant the man used to frequent, so she had known him before the crime.

The man was interrogated. At first, he denied the murder. He gave the police multiple stories. He said he was home alone. He also said he was at a movie theater far away from the scene of the crime.

After two days, however, he confessed. He said he just had to kill someone, and Father Dahme was conveniently located. His military record showed he’d been imprisoned before and was considered something of an unstable nut.

The police asked him where they could find the missing shell. He told them it would probably be in the bathroom of the place where he’d lived last in Bridgeport. Sure enough, they found a shell there. He also took the police on a tour of the path he said he’d used for his getaway, and it matched witness descriptions.

Later, the man recanted his confession. A public defender was appointed for him.

The coroner heard from the police, the eyewitnesses, and a ballistics expert who testified that the bullet in Father Dahme’s brain had come from the suspect’s gun. The case was sent to criminal court. The court date was May 27.

When the trial began, the state’s attorney, Homer Cummings, asked if he could make an opening statement. The judge told him to go ahead.

In roughly the first third of his statement, he laid out the facts of the case essentially as I have done here. It seemed a perfect case. He even said so. And then the universe changed.

Cummings — the prosecutor — proceeded to demolish every point in his own case. He and his staff had gone to every location where an eyewitness had been and proved that it would have been impossible for them to have seen what they said they saw. People from the state’s attorney’s office who had worked with one another for years couldn’t identify their own colleagues under those conditions, let alone a stranger.

The most believable witness, the one who’d known the suspect previously, had applied for the rewards. Her viewing conditions were the worst — like trying to see through the reflective side of a one-way mirror.

As for the confession, Cummings — the prosecutor — had a team of doctors check the transcripts of the interrogation and interview the suspect, and they said the suspect would have confessed to anything. On the other hand, the suspect’s description of the movies he’d seen and when he saw them jibed perfectly with the theater’s records. In those days, projectors were hand cranked, and schedules varied, so the suspect’s knowledge was significant in giving him an alibi.

Yes, the police had found a shell in the suspect’s old bathroom; they’d actually found two, but only one chamber of the revolver had been empty. The landlady said the suspect liked to shoot at outdoor targets and empty the shells in the bathroom. She’d picked up many. As for the getaway path the suspect had shown the police, it revealed nothing they hadn’t already told him.

That left the ballistics evidence. Cummings — the prosecutor — hired six ballistics experts who testified that the fatal bullet could not possibly have come from the suspect’s gun. For one thing, the suspect’s gun was rusty and dulled the “lands and grooves” imparted to the bullet by the rifling of the barrel; the bullet taken from the brain had sharp markings. For another, the suspect’s gun used ammunition with a “grease groove,” something so apparent that traces of it could be seen on any bullet it fired; the bullet taken from the brain had no evidence of a grease groove.

Finally, the suspect’s gun had a defect. The fatal bullet had been fired at roughly a 45-degree angle upwards. The suspect’s gun simply would not fire at that angle.

Cummings — the prosecutor — said the man was innocent of the murder of Father Dahme and recommended he be released after finishing his term for the concealed-weapon charge. The judge agreed. The trial was over. A complete transcript was published in the afternoon paper.

Why did Cummings make the extraordinary effort to destroy his own perfect case? I guess he was honest. He was also prominent enough to be able to afford a political risk. A young assistant district attorney might have viewed such a move as a career-stopper.

It’s even easier to understand why he went through the process of going to trial, building his case, and then destroying it. If he hadn’t, and simply said he wasn’t going to prosecute the case, people might still have thought the suspect guilty and tried to take matters into their own hands. He needed to prove the suspect’s innocence to all.

Up to now, I’ve avoided mentioning the suspect’s name. It was Harold Israel.

One witness said the perpetrator had a “Jewish run.” Another said the perpetrator had a large, beaked nose. Israel didn’t. In fact, he wasn’t even Jewish. He came from a Pennsylvania Dutch background.

Another item I discovered in researching the case has to do with the rewards. Three people applied for them, each with legal representation. One was the woman from the restaurant. One was the Norwalk police officer who’d arrested Israel on the concealed-weapon charge. The third was the county jailer who’d notified the Bridgeport police.

The jailer’s legal representative in the matter of trying to collect the reward was a lawyer named Robert G. DeForest. Clearly, DeForest had an interest in the conviction of Harold Israel. The public defender appointed for Israel was Robert G. DeForest.

The ballistics expert who incriminated Israel testified at the coroner’s inquest before completing his tests. As a matter of fact, the bullet taken from the brain (an incomplete fragment) had not yet even been cleaned of blood and tissue.

My research did not uncover any indication of improper conduct on the part of the police. The interrogation seems to have been conducted properly. They believed they had the guilty party. They publicly accepted the outcome of the trial but grumbled about it privately. The case remains unsolved.

Homer Cummings went on to become Attorney General of the United States under Franklin Roosevelt. And in 1937 the Government Printing Office issued the transcript of The State of Connecticut vs. Harold Israel as something to be read by all U.S. attorneys (it’s now out of print). The preface says, “The primary duty of a lawyer exercising the office of public prosecutor is not to convict but to see that justice is done.”

You may be wondering at this point why I’ve told you all of this. It’s because of today’s date, the 26th of October.

One year ago today, George W. Bush signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. The ungainly title is more commonly abbreviated the USA PATRIOT Act. It passed the House of Representatives 356-66; it passed the Senate 98-1.

Just as a young assistant district attorney might not have had the courage to do what Cummings did in Connecticut v. Israel, few legislators, it seems, were willing to vote against something called USA PATRIOT. I wonder how many of the legislators voting for it even bothered to read it. It’s quite a large act and is not free of typographical error.

Section 412 (out of 1016), alone, allows the Attorney General, personally, to decide whether a person may be placed in detention indefinitely (up to forever). The person has to be an alien, and the Attorney General (or his deputy, if he has delegated the authority, but no one else) must have “reasonable grounds to believe that the alien is engaged in any… activity that endangers the national security of the United States.”

What constitutes “reasonable grounds”? The act doesn’t say. The Fairfield County coroner certainly had reasonable grounds to believe Harold Israel was guilty, so he sent him to an open trial. Indefinite detention has no trial date, and there’s nothing open about it.

Section 501 authorizes the Attorney General to offer rewards, the funds coming from any executive agency or even the military, with no judicial review. Section 502 authorizes the Secretary of State to offer similar rewards and removes a previous limit of $5,000,000 per reward.

One witness whose identification of Harold Israel implicated him in the murder applied for the rewards. The identification was later proved false.

The USA PATRIOT Act is just one of many moves since September 11, 2001 that seem to subvert the American justice system. Last year I wrote about the Bush executive order of November 13 that authorized military commissions to try suspected terrorists. They would operate in secret, allow evidence considered to have “probative value” (such as hearsay), and be able to convict and sentence — even to death — with as few as 1/3 of the commission members voting in favor.

It sounds a lot like a New York grand jury but for a few points:

– It takes a majority of a grand jury to indict, not just 1/3.

– A grand jury merely indicts; the military commission is authorized to sentence to death.

– And the next step after a grand jury is an open trial; the ONLY step authorized in the Bush order after the sentence of the military commission is review by Bush himself (or the Secretary of Defense, if Bush chooses to delegate that authority).

Who decides whether an individual (who is not a United States citizen) is sent to the secret military commission in the first place? It is George W. Bush himself, the same person who has to decide both he and the commission were wrong, if he’s ever to reverse a guilty verdict.

The common refrain from supporters of these moves is that they apply only to terrorists. But how does anyone know before an open trial that someone is a terrorist? There was a perfect case to be made that Harold Israel murdered Father Dahme. The only flaw was that he hadn’t.

I have one final item to report about the Dahme case, the performance of the news media. It might be considered almost as astonishing as the actions of Homer Cummings.

Certainly, the murder was front-page news for a long time (roughly three weeks) in each of the four Bridgeport daily newspapers. But the coverage never attempted to stir emotions. It was remarkably cool. All four of the papers, for example, told their readers that Israel’s confession was not necessarily proof of guilt.

Here’s an editorial from the Bridgeport Sunday Post the day the confession became public. The headline, “Justice Must Be Done,” was clearly not a call to arms.

“If the man, Harold F. Israel, who has just made a belated confession to the slaying on February 4th of Rev. Hubert Dahme, pastor of St. Joseph’s R. C. church, is the real slayer, it will be welcome news to know that this murder mystery which came as a terrible shock to all Bridgeport has been cleared up. The Rev. Fr. Dahme, during his many years in this city, had developed and cemented many friendships, and it is difficult to understand how anyone could have wished to take his life.

“Lack of a motive lends plausibility to the theory that the crime was the work of someone mentally unbalanced and the Israel confession states that Father Dahme was shot on an impulse, without reason. Again we must warn all persons that such a confession does not settle the case. Offhand it would seem incredible that anyone should confess to a murder he did not commit, yet such confessions have been obtained repeatedly and the law itself takes specific safeguards against them. It is right that there should be a public demand for justice, but justice is a two-edged sword. It must defend the innocent as well as punish the guilty. There should be no pressure of public opinion to rush the state’s attorney’s office on this case but time should be taken for a very thorough sifting of facts.”

Today’s journalists could learn from that editorial. And I wish “The State of Connecticut vs. Harold Israel” were still required reading for prosecutors — and legislators.



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