Criminal Prosecution Not a Deal Breaker for NY Politicians

Friday, December 09, 2011

Over the years several public officials in New York have elected to stay in office even as they face criminal indictments — despite the common misperception that an indictment in of itself is evidence of culpability.

Over the years several public officials in New York have elected to stay in office even as they face criminal charges and indictments  -- despite the common misperception that an indictment in of itself is  evidence of culpability. It is not.

Currently Councilman Larry Seabrook, Assemblyman William Boyland and Senator Carl Kruger – all facing Federal prosecution, decided to stay in office after they were slapped with criminal indictments and charges. On Friday, the federal judge in the case declared a mistrial when, after a week of deliberations, the jury remained deadlocked. The Manhattan U.S. Attorney said he intends to retry the case against Seabrook.

Meanwhile Assemblyman Boyland faces his second round of federal charges in the Eastern District after being acquitted just last month of corruption charges in the Southern District.  

Indicted and criminally charged officials continuing to serve in elective office presents a conundrum that puts two of our most fundamental democratic principles in quite a tension: The right to the resumption of innocence that is foundational to our nation's legal system and the right of constituents to unencumbered representation.

Susan Lerner, executive director of Common Cause New York, said it’s an open question how well constituents can be represented when their elected representatives have to also worry about staying out of jail.

"What kind of effective representation are they getting?” Lerner asked. “Is it better to have the legislator stay in office while he fights it out in the courts? Or should she step aside and allow there to be a special election? I don't think there is any easy answer."

But New York state’s elected officials have been running into trouble with the law but staying in office since the near beginning of our republic.

Electeds Above the Law?

In 1804, Vice President Aaron Burr shot and killed Alexander Hamilton during a duel in Weehawken, N.J., and faced a murder indictment in New York that was downgrade to “sending a challenge to a duel.” He was also indicted for murder in Bergen County.

According to Ron Chernow’s biography Hamilton, Burr headed as far south as an island off the coast of Georgia and eventually backtracked north via Philadelphia to complete his term as vice president presiding over the Senate in our nation's capital.

The law enforcement heat from the fatal duel that altered the course of American history eventually blew over in both states and Burr would go on to face treason charges of which he was acquitted.

In the late 1920s, New York City Mayor James “Jimmy” Walker, a veteran Albany player, got himself in trouble for secretly taking large amounts of cash from would-be city vendors looking for contracts, according to The Encyclopedia of New York City edited by Ken Jackson.

(Photo: James "Jimmy" Walker with Charles Lindbergh, June 13, 1927 on the steps of City Hall. WNYC Archive Collections.)

After a high-profile investigation charges were referred to Governor Franklin Roosevelt. Walker resigned  from office and headed for Europe.

And politics have also factored into prosecutions and investigations that cast doubt on electeds that actually never produce even an indictment.

As was the case with Mayor William O'Dwyer, a hard-charging former Brooklyn DA took on the mafia's Murder Incorporated, who was first elected in 1946 re-elected in 1950.

In his auto-biography Beyond the Golden Door O'Dwyer blames a case of hepatitis that contributed to his bungling of the media response to a brewing Brooklyn scandal involving allegations over police corruption that helped set his political slide in motion. 

He got a political life-line from President Harry Truman, who nominated him to be Ambassador to Mexico. O'Dwyer resigned the mayoralty but his reputation was intact enough that he got a ticker-tape parade before heading to Mexico.

He returned briefly 1951, to put in an appearance before the Senator Estes Kefauver’s televised hearings on organized crime in America’s big cities but his defense of his mayoral record did not go well. He returned to Mexico in a kind of political exile until his return to New York City in 1960.  

In recognition of his military service during World War II, he was buried with full  honors at Arlington National Cemetery in 1964.

(Photo: peaking from his City Hall office on March 31, 1949, Mayor William O'Dwyer tells New Yorkers about the city's plans in the event of the taxi strike scheduled for the following afternoon./Acme Newspictures/WNYC Archives Collection)

These days, it takes a lot more than bad press to drive the embattled pol from office even facing formal corruption charges.

More recently, state Assemblyman Roger Green pled guilty in 2004 to petty larceny, resigned, and then ran for his seat and won again.

City Council Miguel Martinez took the path of least resistance, resigned from office and pled guilty to federal corruption charges for bilking $100,000 from non-profits he got funded via the Council in 2009. He was sentenced to five years.

Resign or Hang in?

Defense attorney Alan Zegas has represented several elected officials who found themselves criminally indicted while in office and he said it can be a real crucible for politicians.

"There is frequently enormous pressure put upon elected officials to resign in the face of an indictment even though the indictment is nothing more than a way of instituting a criminal proceeding," said Zegas in a phone interview. "It is not proof of any sort."

Zegas said the public treats an indictment like a conviction and that he counsels his elected official clients to only resign if there is an internal legislative ethic hearing where the official would have to invoke their Fifth Amendment protection against self-incrimination.

"I would prefer he or she resign rather than publicly plead the fifth because the perception created" is that he or she is "guilty of something even though the Constitution provides otherwise,” he said. 

Not Sign of Legal Woes at Senator’s Bustling Brooklyn Office

Along the commercial strip along Avenue U in Brooklyn, signs are in Russian, Chinese, Korean and Spanish. Aggressive produce vendors shout to get shoppers attention and try to close the deal with a piece of free fruit.

A few blocks down, it was business as usual in Senator Carl Kruger's district office were supporters sat around laughing and a constituent was getting help in Russian.

Kruger, who has held the Senate seat since 1994, was charged by federal prosecutors in March with taking more than $1 million in bribes from lobbyists and developers starting as far back as 2006.

A message left for Kruger's chief of staff was not returned.

But along the same avenue, which is dotted by vacant storefronts, small business owners have less patience for politics as usual.

"You can see a lot of stores are closing up. All you’re getting is some of these 99 cents stores and that is it," said 82-year-old lampshade shopkeeper Mario Delilo who says he tries to stay out of politics. "Hey, look they just raised the real estate taxes and everything else and what not. It's pathetic. … It went up like crazy."  

Second-generation landscape nursery owner Anthony Demilo sells Christmas trees a few blocks down.

 "You got people struggling everyday to make ends meet and you have these people in high offices and a nice salary, you know, in the meantime they have flamboyant lifestyles," he said.

"They need more money, and the more money they get the more money they want. Some of them feel they are superman -- they can do whatever they want. They are above everything."

Embattled Assemblyman Continues to Conduct Business as Usual

On a recent afternoon at Assemblyman William Boyland's District office in Central Brooklyn, the phones were busy. The street where his office is located – Thomas Boyland Street – is named after his well regarded late uncle, who once held his nephew’s Assembly seat.

Boyland was acquitted last month on corruption charges only to be indicted a second time in less than three weeks for allegedly trying to shake down undercover FBI agents – in part to pay for his initial trial.

Street vendor C. Taylor said  Boyland should stay in office and fight the new federal charges in Brooklyn. The CD vendor says Boyland interceded for him with the police department in the past.

"Stay in office, yes he should stay in office he is a good man, a good man," said Taylor.

Boyland’s legislative distinct is one of the poorest in the state, and his self-dealing is emblematic of the deep gap between elected officials and this neighborhood, according to Albion Liburd, executive director of the Community Services Housing Development Corporation.

His district includes Brownsville, Bedford-Stuyvesant, Crown Heights and Bushwick. 

"There is a disconnect between what they do and how they exist and actual people in the street," Liburd said. ”We have less food now and we have more people looking for food. We have more people looking for food stamps. We have a clothing program. We give out coats in the winter. They fly off the racks, so to speak."

Liburd said thanks to a cycle of cynicism and apathy voter turnout is low and incumbents  can hang on by just taking care of a small percentage of the electorate.

"We in New York state, for whatever reason, they get to hang in. We allow them to continue until either their next election cycle is up or until they actually get convicted," he said.

On Pitkin Avenue, vendor Abdul Karim Amin sells oils and incense. He says Boyland's second run-in with federal prosecutors is an embarrassment to the district.

"He doesn't need to represent this community at all,” Amin said. “You can't take money like that. Just the way he did it  — he just made fools out of the people."

Boyland’s chief of staff, who did not return request for comment, has also been criminally charged.

Boyland also has a pending investigation before the Joint Legislative Ethics Committee.   

Zegas, the attorney, said important principles are at risk when the public pre-judges any defendant, even the indicted electeds.

"The public needs to be educated that an indictment  is nothing more than a charge," said Zegas.  "Yet the immediate reaction is typically that if accused  the person is guilty."

(Photo: Councilman Larry Seabrook.Azi Paybarah / WNYC)

Seabrook may face a retrial on the charges. If he is convicted on any of the federal felony counts related to his alleged use of bilking city funds through non-profits he ran he loses his office. At that point the mayor calls a special election.

Both Boyland and Kruger's constituencies will be in a kind of legal limbo for awhile longer. Both cases go to trial next year.

Yasmeen Khan provided research for this article.


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