Looking Back on 2009 and Moving Forward

Looking back, 2009 was a transition year at the national level. We moved from Bush to Obama in the White House and from an falling economy to a stabilizing one. Here in New York, a great deal of positive change occurred, but not everything was positive.

Troubled Waters Mix with Euphoria

The year began with the selections of Hilliary Clinton for US Secretary of State and our friend Kirsten Gillibrand for the US Senate as well as the joyous inauguration of President Barack Hussein Obama as our nation's 44th President. With the economy still reeling from the Fall 2008 meltdown in the financial markets, we swelled with pride as the progressive Democrats took control of our national government. So many of our friends now had the authority and the opportunity to make a difference in the lives of Americans and even change lives around the world. It was a special beginning to a year at a time when all of knew that our country was looking for reasons to return to optimism.

But, before we could get through March, Washington DC and the national government chose Manhattan as its scapegoat and punching bag. Even the President of the United States went on the attack. While the Congress failed to implement the worst of the anti-Manhattan legislation they considered (even some that passed in the US House), the President and many others continue to look for opportunities to punish Manhattan as Manhattan's financial community attempts to rebuild its strength in order to help rebuild the US economy.

Thankfully, our Governor has refused to stand by quietly as one of his state's leading industries is attacked from all quarters. Let us hope his leadership in this regard begins to change the trend toward undermining our country's advantage in financial services.

Bloomberg's Arrogance Expanded

When Mayor Bloomberg refused to accept the President's offer of food stamp money in early 2009, at the height of the anxiety over the economic challenges facing the United States, many considered it out-of-character. At Manhattan Viewpoint, we saw it as part of a trend of poor decision-making, anti-poor policies, and intense arrogance. We were proven right as the year continued.

In May, Mayor Bloomberg arrogantly chose to impose regressive taxes to reduce his budget deficit - in effect, he decided that poor people's taxes were too low, but those with high incomes couldn't afford any greater tax burden. In that same month, we found out that Bloomberg's NYPD was on a pace to set a record of stop-and-frisk activity - an activity targeted almost exclusively at African-American and Hispanic New Yorkers. In his arrogance, the Mayor has refused to step back from this racist and counterproductive policy. He has even fought law suits aimed at ending it and those aimed at forcing the NYPD to delete the personal data collected on the hundreds of thousands of innocent people who are stopped each year.

In July, Mayor Bloomberg insulted all of us by giving his senior staff retroactive raises in the middle of a horrible economic crisis and just after he had asked poor people to shoulder the burden of his spending.

As the race for Mayor in 2009 became tight, Mayor Bloomberg played the race card and 1) became a strong advocate for Giuliani as the next Governor of New York State, while 2) stating that New York City would become as unlivable as Detroit if Thompson were elected.

Ultimately, Bloomberg was successful in defeating Bill Thompson in the race for Mayor, but he was humbled by the small margin of victory after outspending Thompson by more than 10 to 1 and after spending a record amount - more than $100 million - on his campaign.

Successes and Failures in Albany

Governor Paterson and the New York State Legislature deserve enormous credit from repealing the Rockefeller Drug Laws, but they came up short in the fight for marriage equality. New York State should be leading the way in providing human rights to all of its residents. We have failed to do so.

We did allow incarcerated women during child birth to be unshackled, a worthwhile and difficult fight.

The chaos that gripped Albany in June subsided in July as order was restored. Later, Governor Paterson's choice for Lt. Governor, Richard Ravitch was allowed to take office by the New York State Court of Appeals.

President Obama's Lack of Support

Unfortunately, the President was unsupportive of Bill Thompson's campaign for Mayor and has been downright ugly in his efforts to push Governor David Paterson out of the Governor's Mansion to allow Attorney General Andrew Cuomo a chance to take over that position.

With the year now at its end, we are able to look forward to 2010, a year in which, at the national level, health care reform is likely to face an historic vote early in the year after the House and Senate meet in conference to attempt to reconcile their two bills. The year will also see Senator Schumer and Senator Gillibrand both face re-election challenges (though neither actually has an opponent yet). Governor Paterson and Attorney General Cuomo will have to decide whether they are both running for Governor in the September Democratic primary or if one will support the other in that effort (Rock Lazio is the only serious Republican contender for the Governor's office at this point).

So much is at stake in 2010 - we can hardly wait.

Percy Sutton

We lost Percy Sutton last week. He was the personification of Manhattan and as clear an example of a Manhattan progressive as there is in the world. We wish his family well, and we are aware that we were blessed to benefit from his presence in our great city for so many years.

Bloomberg Loses Morgenthau Fight and Sets School Closing Showdown

Mayor Bloomberg was embarrassed by his decision to engage in a feud with the Manhattan District Attorney, and he correctly decided to move the upcoming high school closing showdown meeting from Staten Island to Brooklyn in order to make it accessible to a larger number of New Yorkers.

Poorly Chosen Fight

Mayor Bloomberg picked a fight with retiring Manhattan District Attorney Robert Morgenthau earlier this month. Last week, the fight ended with a humiliating defeat for Bloomberg on several fronts. Manhattan Viewpoint endorsed Morgenthau's successor, Cy Vance, and hopes that the incoming District Attorney will be as determined as his legendary predecessor to refuse to be intimidated by the Mayor.

The Mayor demanded that the Manhattan District Attorney provide all of the proceeds of a large recent legal settlement to New York City. Morgenthau had traditionally split the funds 60/40 between NYC and New York State with the City getting the larger portion.

Angered by the Mayor's arrogance (and undoubtedly frustrated that NYC had refused to take responsibility for the deaths of New York City Firefighters that were clearly caused by the City's criminal negligence), Morgenthau guided the New York State Legislature and Governor Paterson to pass a law that would specifically target the large settlement in question and divide the proceeds 50/50 between New York City and the state.

When the settlement was received, the city received $27 million less than it would have received if the 60/40 approach had remained in place. The Mayor's arrogance cost all of us in New York City $27 million.

Bloomberg threatened Morgenthau with a scandal during the fight for the 50/50 legislation, saying that if he continued to push for the 50/50 split, the Mayor would release information showing that Morgenthau had millions of dollars in "secret" accounts. Morgenthau continued to push for the 50/50 split and was hit with the "scandal" of the "secret" accounts, and the Mayor went on the attack against the legendary District Attorney, whose office brought nearly $200 million to New York City in 2009 without including the settlement generated the controversy. But the attack backfired.

There turned out to be more than 2,200 secret accounts within the New York City government, and Morgenthau had 48 such accounts. It turned out that all of the so-called "secret" accounts had been known to New York City for years and that the Mayor was using the idea of the "secret" accounts as a failed attempt to exact revenge.

The Mayor finished the fight embarrassed that he overlooked the "secret" accounts of Morgenthau for years and failed to notice the other 2,100 "secret" accounts within his government. He also lost $27 million in the process.

Brooklyn Showdown on School Closings

New York City is planning to close 20 high schools. While many parents and observers oppose the closings and even suggest that the wrong schools are on the list to be closed for the wrong reasons, the closings are certain to occur because the Mayor controls the Board that will decide whether to approve the City's plan.

Amazingly, the City originally scheduled the first an only public hearing on the issue for a January date in Staten Island despite the fact that most of the schools scheduled for closing are in the Bronx. None of the schools scheduled for closing are in Staten Island. The location was more than a 2 hour trip from the location where the largest number of school closings are proposed, and the length of the trip and the 6pm start time would create a major impediment to attendance by the parents of the students in the schools scheduled for closing.

Thankfully, the meeting has been moved to Brooklyn, which is a long way from the Bronx. But, Brooklyn is not nearly as remote as Staten Island, and Brooklyn is our City's most populous borough. One struggles to criticize the scheduling of any city-wide hearing for a Brooklyn location, even when Brooklyn seems to have been chosen in a cynical effort to select the borough furthest from the Bronx that would not create the obviously sense of bad faith that a Staten Island location suggests.

Feel free to attend the meeting at Brooklyn Technical High School on January 26 at 6pm.

Praising Paterson's Wall Street Defense

Last week, New York's Governor Peterson became the first elected official to aggressively challenge the notion that punishing Wall Street is good for the economy. We hope that others will follow his lead.

War on Manhattan

As we have stated on many occasions, Manhattan's economy is heavily influenced by the health of the Wall Street economy.

One third of New York City's employee earnings come from the financial sector, and when that sector suffers, New York City suffers. As many in Washington, DC continue to design plans to undermine the ability of Wall Street firms to offer competitive compensation packages and retain their best employees, we are encouraged by our Governor's courageous defense of the unpopular US financial sector.

If New York City and New York State have any hope of closing their budget deficits, it is through resurgent Wall Street profits and tax revenues from the compensation received by New Yorkers who work in the firms that drive the world's financial system from headquarters located in Manhattan.

Moreover, if the US federal government makes it more difficult for firms to lead the financial sector from the US, those firms will leave Manhattan and move to other parts of the world. Manhattan's place as the world's financial capital is an economic and national security advantage for the US, and sustaining that advantage requires the type of attitude that Governor Paterson expressed last week.

Paterson's Thorough Defense

In Saturday's Presidential address, President Obama took aim at Wall Street and stated that Wall Street caused the recession through which we are all now suffering. He said that the cause of America's current economic struggles was "the irresponsibility of large financial institutions on Wall Street . . ." The US House passed sweeping financial regulatory reforms recently, and as we await Senate actions on that House bill, the President seems to be gearing up to support attacks Wall Street with these new regulations and perhaps other legislative proposals that may win him political points but will undoubtedly add greater burdens to our troubled economy here in New York City.

Governor Paterson addressed the war on Manhattan last week in a speech.

"Some people think that if you deny the bonuses, that the money’s coming back to the American taxpayers. It’s actually the other way around. If you deny the bonuses, the money stays in the firms. It’s when you pay out the bonuses that you start to get the huge tax collections that New Yorkers see."

He followed up later.

"You don't hear anybody in New England complaining about clam chowder. If you say anything about oil in Texas, they'll string you up from the nearest tree. We need to stand by the engine of our economy in New York State, and that engine is Wall Street."

He also used his Twitter account to reinforce his views.

"Iowa, corn. Michigan, autos. Texas, oil. NY, Wall Street . . . We must stand behind the engine of our state's economy & strengthen it."

"If we support Wall St, and make the tough choices necessary to stabilize our state, Wall St will help NY as we build a New Economy."

Governor Paterson, you said it well.

Increased NYPD Misconduct Proves Costly

We learned last week that the police department in NYC has faced an enormous increase in law suits against it and a similar increase in payouts to their victims as well as an accusation by a federal judge that the NYPD has engaged in a pattern of promoting false accusations and perjury to harm ordinary New Yorkers.

Cost of Police Misconduct

The New York Times reported last week that the payouts in settlements related to police activity in New York City had increased every year of the eight-year Bloomberg reign in City Hall, and that payouts had nearly doubled in the last five years to almost $120mm per year. During that same time frame, the number of lawsuits filed each year against New York City based on police misconduct has increased by more than 20%

The increase should not be a surprise for a number of reasons.

First, in 2008, the payouts related to police misconduct increased by 40% over the previous year.

As we have discussed here on numerous occasions at Manhattan Viewpoint, the NYPD is setting records for stopping and frisking innocent New Yorkers and is stopping and frisking New Yorkers of color at rates that cry out of federal oversight, punitive damages, and attempts at redemption. Instead, the race-based stop-and-frisk policies of the NYPD have continued on and been led by an unapologetic Mayor, who successfully sought a third term as Mayor while setting the record for stopping and frisking innocent New Yorkers.

In 2006, 55 percent of the stops were of Black people – more than double the Black population percentage.
Cops found guns, drugs, or stolen property on whites about twice as often as they did on black suspects.
Stops of whites amounted to only 2.6 percent of the white population. By contrast, stops of Blacks, represented 21.1 percent of the entire black population.
Residents of Brownsville's 73rd Precinct and Harlem's 28th Precinct had a 30 to 36 percent chance of being stopped and questioned by police in 2006. Citywide, the average was about 6 percent.

In 2009, as our city sets a new record for stop-and-frisk activity, this set of ugly statistics grows worse and becomes a clearer example of race-based policing that works against justice while promoting resentment of the NYPD amongst New Yorkers and promoting a culture of "White Privilege Promotion" within the NYPD as being white lowers ones chances of being stopped by 90% despite the fact that being white makes one twice as likely to be carrying guns, drugs, or stolen property.

NYPD Pattern of Falsehoods

A federal judge in Brooklyn has set a precedent by embracing the idea that the NYPD has a practice of falsely accusing innocent New Yorkers of criminal activity as well as promoting other falsehoods to support the false accusations against our fellow residents.

Federal Judge Jack Weinstein said that the NYPD had demonstrated a pattern of "widespread falsification by arresting officers." He also called the lack of truthfulness within the NYPD was an institutional problem. He said, "there is some evidence of an attitude among officers that is sufficiently widespread to constitute a custom or policy by the city approving illegal conduct."

In light of this view from the federal bench, none of us should be surprised that lawsuits and settlement amounts related to police misconduct have been increasing.

Now, Mayor Bloomberg and the NYPD have an obligation to make aggressive and sweeping changes in their approach to New York City residents while weeding out the NYPD's growing tendency to use false allegations and other misconduct in carrying out its activities.

Age of Innocence Coming to NYS

New York's judges and our State Senate may be ushering in an age of innocence with groundbreaking efforts to allow defendants to appeal their convictions on the grounds that they were innocent of the charges against them.

Actual Innocence

While being innocent may not seem to be an exotic defense to most people who are not involved with the criminal justice system, our nation's legal history forbids the use of innocence as a defense at the appellate level. There are New York judges and members of the New York State Senate that are starting a new trend of allowing "actual innocence" as a an appellate claim.

Generally, a defendant seeking to reverse a conviction must prove that the proceedings within the judicial system violated the defendant's constitutional rights in order to earn the reversal. Often, the presentation of new evidence of innocence is not permitted unless the defendant proves that the evidence would have been impossible to present at the original trial. The basis for this approach of prohibiting actual innocence as a defense in the theory that our judicial system needs and values finality. If convicted defendants were permitted to re-argue their innocence at every level, prosecutors would essentially be required to convict defendants three or four times in order to be certain that the guilty verdict would prevail. The sentencing could be equally confused by endless appeals on the grounds of actual innocence.

The Supreme Court of the United States took an extreme view of the limits of actual innocence in 1994. In that year, they ruled by a 6-3 vote that a defendant's actual innocence claim, even when endorsed by the statements of the state that sought his conviction, was not a proper basis for an appeal. To add to the drama of that 1994 case, the defendant was executed by the state of Texas in the early days of 1995 after losing the appeal in 1994. In essence, the Supreme Court ruled that being innocent is not an appellate defense even if the prosecutors tell other juries in other cases that you are innocent in order to convict other defendants of the crime for which you are scheduled to be put to death. The state of Texas, in the 1994 case, even argued in another trial that the executed defendant was unaware that the actual murder had a weapon in the moments prior to the crime in question and that the executed defendant was not in the building with the victim at the time of the killing.

One Supreme Court Justice has stated that executing a defendant known to be innocent is very similar to murder by the state. The 1994 case referenced above demonstrates how an innocent defendant can be executed nonetheless.

Jesse DeWayne Jacobs was executed on January 4, 1995, despite the fact that Texas prosecutors knew that he did not shoot Etta Urdiales in 1986. In speaking to the jurors that would sentence Jacobs to death, Montgomery County District Attorney Peter Speers said, "The simple fact is that Jesse Jacobs and Jesse Jacobs alone killed Etta Ann Urdiales." However, another prosecutor said that Jacobs' sister, Bobbie Jean Hogan, actually killed Urdiales. At Hogan's trial, the prosecutor also said that Jacobs "[didn't] know that Bobbie had a gun." Texas convicted Hogan of involuntary manslaughter in the Urdiales killing, and Hogan received a ten year sentence. Nevertheless in Jacobs v. Scott, No. 94-7010, the U.S. Supreme Court, by a 6-3 vote, allowed Texas to execute Jacobs. Jacobs was killed by lethal injection on January 4, 1995.
Even in light of this new evidence, Texas Attorney General Dan Morales refused to acquiesce to a new sentencing hearing, relying on Supreme Court precedents that limit death row inmates to raising constitutional questions on appeal. Since "the prosecution's subsequently stated belief that Hogan was the trigger person is not new evidence, newly discovered or otherwise," Morales asserted that Jacobs' death sentence should stand. Two different persons were convicted for shooting the same person. Upon review, the United States Court of Appeals for the Fifth Circuit refused to overturn Jacobs' death sentence, holding that "it is not for us to say" that the jury had made a mistake. The Supreme Court denied review, with Justices Stevens, Ginsburg, and Breyer dissenting. Stevens wrote, "It would be fundamentally unfair to execute a person on the basis of a factual determination that the state has formally disavowed. I find this course of events deeply troubling." Stevens was particularly moved by the fact that the State itself vouched for the recantation of Jacob's confession.
Texas had full knowledge of the fact that Jacobs was not guilty of the crime that he was sentenced to death for committing. Texas sentenced the person who actually killed Urdiales to ten years in prison, while executing Jacobs.

New York's Age of Innocence

In New York State, two recent court decisions have endorsed the concept of actual innocence as an appellate claim, and the New York State Senate has begun to pursue legislation that would create an actual innocence defense.

One of the decisions, issued on November 9th of this year, states that the appellate judge was persuaded by the defendant's submission that the defendants was innocent, and the judge follows that finding with a dismissal of the conviction with prejudice (meaning that the defendant cannot face a new trial for the crime in question). In July of this year, a similar case resulted in the tossing aside of a conviction in New York State. Both defendants had spent more that a decade imprisoned for crimes that they did not commit (18 years and 12 years, respectively), and both were released based on "actual innocence" rather than constitutional violations.

In October of this year, members of New York State Senate introduced legislation entitled the Actual Innocence Act of 2009. The legislation, if enacted, would establish the appellate claim of actual innocence for convicted defendants in New York State and prevent the abuse of law by permitting judges to ignore evidence of actual innocence if the defendant intentionally withheld evidence of his or her own guilt during the trial. “Prolonged and unnecessary incarceration of the innocent is detrimental to all - the wrongly incarcerated, society, the criminal justice system and the victim. I can only hope that the proposed legislation ensures that others wrongly incarcerated like me, never have to suffer like I did in securing their freedom through the criminal justice system,” said Marty Tankleff, who was wrongfully convicted for the murder of his parents based on a false confession.

The most important "actual innocence" effort now is to promote the passage of this legislation.

Taking Authority Over Authorities

Last week, New York State took a major step forward toward government accountability by establishing oversight over most of the nearly 1,100 authorities that have governed in our state for decades without checks and balances.

Authorities - The Shadow Government

Authorities in New York State operate as if they are self-contained independent governments. They collect fees and issue bonds. They often have layers of their own bureaucracy and have, until now, never been forced to operate in a transparent manner or face the scrutiny of any other part of the government. These authorities are often referred to as a "shadow government" because of their enormous power and lack of oversight by other entities.

There are many estimates of the number of authorities operating in New York State, but the New York State Comptroller's office has suggested that the total number approaches 1,100. Some of the most well-known and most important are the Port Authority (which manages each of the major New York City metro areas airports as well as several bridges and tunnels), the Metropolitan Transportation Authority (which manages New York City's subways and buses), and the Dormitory Authority (which builds all of the public hospitals and higher education buildings across New York State).

In total, these authorities have built up a debt load of $150 billion and are key sources of employment and governance within our state.

Oversight From Albany

In a major development that changes the shadow government into a set of quasi-governments that are accountable to the state government in Albany, Governor Paterson signed legislation last week that brings the authorities out of the shadows.

While some experts have suggested that reform must go farther than simply demanding accountability and must include reducing the number of authorities as well as limiting their power, the first step is a necessary and valuable part of improving the overall quality of government and the level of accountability in our state.

The reform legislation will:

1) Establish the creation of an independent Authorities Budget Office to oversee authority operations
2) Allow for Comptroller review of contracts for more than $1 million that do not result from a competitive bid process
3) Mandate enhanced financial reporting, mission statements and measurement reports by public authorities, so that the State and the public know what authorities are doing, as well as their financial condition
4) Strengthen the rules governing the disposal of property by public authorities to prevent the give-away of public property to private developers
5) Strengthen the rules governing contact between lobbyists and employees of public authorities
6) Regulate the formation of subsidiary corporations and the issuance of debt by subsidiaries in order to place limits on the amount of debt issued by those corporations
7) Require board members of a public authority to perform their duties in good faith, in the best interest of the authority, its mission and the public in order to ensure that public authorities act responsibly
8) Create a Whistleblower Access and Assistance Program to protect those individuals who report wrongdoing.

With improvement in Albany still necessary, we are pleased to see Albany starting to take control of the authorities that play such a major role in our lives.

The Terrorists are Coming! and GED's are Not Coming

Last week, we learned that September 11th conspirators captured by the US government will face a criminal trial in lower Manhattan. We've also learned recently that New York State and New York City are the worst performing jurisdictions in the US in terms of GED passing rates and GED preparation.

Manhattan Hosts the Terrorists

The President has been criticized by many Republicans and by some members of the families of the September 11th families for choosing to prosecute the September 11th conspirators in Manhattan. While the tragedy of September 11, 2001 remains a fresh memory and an unhealed wound for so many Americans and for a large number of New Yorkers, the tragedy of George W. Bush's mishandling of the aftermath of the tragedy remains front in center in our memories as well.

President George W. Bush promoted and supported the use of torture against those captured in the post-September efforts to combat Al Qaeda. He created military courts as venues for prosecuting captured conspirators. He had foreign captives taken to secret prisons outside of the US in order to escape the requirements of the US Constitution related to accused criminals.
The Bush Record is a potent ingredient in the Obama decision to bring these terrorists to Manhattan. Instead of running from the US Constitution and violating international law, President Obama is boldly re-asserting America's role in the world as an example to all nations. He is demonstrating that we are a nation that follows its own laws and believes that it can provide its enemies with guarantees of human rights protections while also holding the world's worst terrorists accountable for their actions.

Manhattanites should take pride in being the venue for the re-emergence of the US as a world leader in the rule of law, human rights, and justice. When these terrorists receive their sentences, they should be sentenced in Manhattan. We are ready for justice to flow down on these terrorists like a mighty stream and wash away both the stain of the Bush abuses and any lingering doubt amongst Americans regarding whether our criminal justice system is adequate in the age of Al Qaeda.

GED Disappointment

New York City is failing the GED. With enormous numbers of New Yorkers living without a high school diploma, the failures of New York City are creating hurdles to GED test-taking and resulting in very few successful GED testing performances.

As stated in the New York Daily News:

Although 1.6 million city residents older than 16 are not in school and lack a high school diploma, only 28,000 took the high school equivalency test last year to get a General Equivalency Diploma. Just half of the test-takers passed. Statewide, just 60% test-takers passed - making New York's pass rate dead last.

A recent Community Services Society (CSS) report found that there is no single phone number or Web site to find a program or test site, no citywide data that track which programs work and no link between funding and success. "There are really no standards for the prep courses," said David R. Jones, president of the CSS. "Even somebody who couldn't pass the GED themselves could be an instructor."

New York City needs a coordinated effort to draw New York City residents into GED programs, drive them toward the test, and get them positioned to pass the test. If our NYC schools are going to leave more than 1 million of our residence without a high school diploma, our city must provide its residents with a path to opportunities, and passing the GED is a key place from which our city's residence can launch themselves forward. Thus far, New York City is failing.