Month: January 2017

Ask any lawyer involved in the criminal justice system about cases that mark you for the rest of your life and they can tell you the name immediately.

One such case that I was involved in was the murder of Katy Hawelka in 1986. Unlike most of the cases I took, this was one in which I didn’t represent the defendant.

I represented the victim and her family.

Her mother came to our office in September of 1986 in the weeks following the murder of her daughter.

The monster who murdered her, Brian McCarthy, had been arrested and charged with her murder. Her mother wanted me to monitor the court proceedings and advocate for her daughter and the family to insure McCarthy didn’t escape being held responsible.

Katy was a 19 year-old second year student at Clarkson. She was a very kind, intelligent, talented and beautiful individual who would have contributed much to the world in life, had she been allowed to live.

On the night of August 28, 1986, she was beaten, raped and strangled by McCarthy in a horrific attack that must have seemed an eternity to her. He left her so badly injured and damaged that she was unrecognizable to her family. She lingered, suffering from those injuries, for several days in a Watertown, N.Y. hospital before succumbing from the beating.

McCarthy ultimately pled guilty to Murder in the Second Degree in St. Lawrence County Court and was sentenced to twenty-three years to life in the New York State Correctional System.

During his prosecution, Katy’s mother told me that she wouldn’t have wanted him put to death because she wanted him to have to think about what he had done to her daughter every day for the rest of his life.

In 2011, McCarthy became eligible for parole. His applications for release have been denied by the Parole Commissioners three times. He has had hearings in 2011, 2013 and 2015. Each time he has had a hearing Katy’s family has appeared and opposed his release. Thousands of people who knew her and didn’t know her have signed petitions opposing his release.

He is scheduled for another hearing on March 2nd of this year.

Katy’s family will be forced to relive this nightmare again.

I have read and reviewed the transcripts from McCarthy’s 2011, 2013 and 2015 parole hearings and have found he has lied multiple times to the board of Parole.

During the 2011 Board appearance McCarthy claimed to have attended a hockey game with Katy. He claimed to have met her on a walkway later that night and that they were both under the influence of alcohol and agreed to have consensual sex. He then claimed that she became angry and violent and attacked him because of his inability to perform sexually. He claimed to have hit her once and she died from striking the pavement. He denied strangling her.

His account of their encounter and her death is a complete fabrication.

McCarthy’s crime was a stranger to stranger encounter.

Katy Hawelka was a complete stranger to him and he was a complete stranger to her.

She did not attend a hockey game that evening with him nor was there a hockey game that night.

Walker Arena, where hockey is played, was filled with computers scheduled to be delivered to incoming students the following day. Katy had been out with friends that night, one of whom agreed to walk her home because of an ankle injury she had suffered. Regrettably he parted ways with her before she made it to her residence and that is when she encountered McCarthy.

During the course of the rape and assault, McCarthy struck her and kicked her while wearing his work boots. He repeatedly smashed her head into the wall of Walker Arena. That sound echoed throughout Walker Arena and was so loud that the security guards inside thought someone was trying to break in and went to investigate.

That was when they found her, badly beaten clinging to life.

While McCarthy claims to have been intoxicated by alcohol and drugs, professing amnesia about his actions and motivation, the Potsdam Police found him hiding nearby, covered with blood. He had the presence of mind to try and fabricate an account of being assaulted by another party and presented himself as a victim, along with Katy.

While he professes to think about her every day and has goals which include repairing the “hurt” he caused the “victim’s family”, it is obvious that he hasn’t given the victim any thought whatsoever.

Indeed, he doesn’t even know her name- repeatedly referring to her as “Kim Avadikian.”

Kim Avadikian was one of the security guards at Clarkson University who discovered Katy after McCarthy had beaten, raped and strangled her.

During the criminal court proceedings, Katy’s mother told me she didn’t want McCarthy executed because she wanted him to have to think about what he had done to her daughter every day for the rest of his life.

Clearly, he hasn’t thought about her at all.

During that same appearance, McCarthy lied to the Parole Board about having had a prior “intimate relationship” with her.

During his next appearance before a Parole Board in 2013, McCarthy tried to claim that his prior account of the assault being a single blow, was the product of a “blackout” although the police investigation revealed he attempted to portray himself as having been a victim of an assault evinces cognitive awareness and presence of mind on the night of the crime.

During his 2015 appearance, McCarthy finally admitted that he didn’t know Katy but, again, lied to the Parole Board, claiming he was unconscious when the police discovered him on the night of the attack.

While discussing his claim of rehabilitation, he was asked “Where does the victim fit in?” He replied “I was going to ask which victim, there is more than one. “ This exchange reveals a stunning and callous level of narcisstic self-absorption to the degree that he believes himself to be a victim.

In these three appearances before the Parole Board, McCarthy has repeatedly lied to the Board about the viciousness of his attack.

He has slandered Katy in death by continuing to claim they had a prior intimate relationship.

He has sought to minimize, rationalize and excuse his conduct by claiming to have been in an alcohol, drug induced state contrary to what the police investigation revealed.

For the past nineteen years, I was an Onondaga County Court Judge and an Acting New York State Supreme Court Justice, who presided over thousands of felony level criminal cases and the annual reviews of civilly committed sex offenders pursuant to Article 10 of the Mental Hygiene Law. Because I was a member of the State Judiciary, I was prohibited from commenting about McCarthy during his prior parole appearances. I retired from that position on December 30, 2015.

I now no longer have that restriction and plan to offer my opinion to the parole Board.

It’s not a difficult or complicated one to understand.

He remains an unreconstructed, un-rehabilitated sociopath, who is a danger to women everywhere.

I have never asked the readers of this blog to do any more than read, think about and hopefully enjoy what I have written.

If you would like to take a step toward keeping this monster in prison, then please go to the link to the petition that is just below last week’s post “Milestones” on this page and add your name to it.

If you would like to do a little more, write a letter to the Parole Board, addressing it to;

Senior Parole Officer
Marcy Correctional Facility
9000 Old River Road
P.O. Box 5000
Marcy, New York 13403-5000

It’s been thirty years since Katy Hawelka was murdered.

She should never be forgotten.

Brian McCarthy should never be forgotten either.

My friend and former law partner, Ben Wiles Jr., turned 100 this past week.

That’s right 100.

I have known Ben for almost forty years. In 1979, I was working as a staff lawyer at the Frank H. Hiscock legal Aid Society and was musing aloud about starting my own law practice.

Ben’s brother, Dick Wiles, was a family friend and mentioned to my father that Ben and his son, Chris, had an empty office in the State Tower Building that they might be willing to rent. Dick was a great guy who was extremely civic minded, volunteering to Chair the City of Syracuse Zoning Board for years until Mayor Lee Alexander persuaded him to accept an appointment to the City’s Common Council. He reminded me of the Roman official, Cincinnatus, who in times of crisis would leave his plow to lead the Roman Empire.

I knew Chris slightly from Democratic politics and made an appointment to stop and see them. After making some small talk, Ben told me that they did have an office which belonged to another lawyer but that I could rent it. When I asked why the other lawyer didn’t need it, he told me that he just used it as a place to come in and read the newspaper. I’ve come to appreciate that concept. Thus, began a relationship that would endure and I would cherish from that day to this one.

I shortly discovered that Ben and Chris did work that differed greatly from mine. They were representing clients involved in real-estate transactions, estate work and corporate practice that I didn’t understand. If it was a tax question I never would.

I was representing clients in traffic and civil litigation and a large assortment of criminals in a court appointed capacity. On my first day in the office the secretary we shared asked if there was anything she should do differently. “Hide your purse,” I told her.

Both Chris and Ben were possessed of a great sense of humor and loved hearing about the various escapades that my criminal clients got themselves into. Chris took particular delight in greeting them in the waiting area with the question, “Aren’t you in jail yet?”

Over time we began to trade work on our respective files. They would help me with a real-estate closing or drafting a last will and testament and I would resolve the traffic matters and occasional criminal case that their client might get themselves into. The arrangement worked so well that we decided to form a partnership.

Chris also had an arrangement with an older lawyer, Tom Dyer, in which they shared an office in Marcellus. Tom made it clear that, partnership or no partnership, I wasn’t allowed to use the office in Marcellus because he feared that the crime rate would go up if my clients came there.

One of our most memorable cases involved representing the head zookeeper of a Louisiana zoo who was charged along with a group of other zookeepers with conspiracy to smuggle a Harpy eagle in to the United States. Since we were court appointed, Ben kept asking how there could be an indigent zookeeper? I didn’t have an answer for him. Once the case was dismissed, he wanted to know how he could express his gratitude. Chris and I told he could get us a parrot that could talk.

“What are you going to do with the parrot?” Ben asked. “We thought we’d put it in the waiting area and let it talk to the clients about legal fees,” I answered. “How are you going to feed it on the weekends? “he asked. “Claude, the elevator starter could feed it,” Chris volunteered. “You’d be better off having the parrot feed Claude,” Ben answered.

In the end our newly freed, indigent zookeeper client told us that he couldn’t find one “that wouldn’t chew our arms off.”

One of the beauties of being in partnership with Chris and Ben was that none of us ever knew what the other one was working on. It also meant that no one was looking over anyone’s shoulder or complaining about their productivity.

If you were a fan of the television show, Boston Legal starring William Shatner and James Spader, you know that every episode ended with the two of them sitting on the balcony of their law office, smoking a cigar and drinking scotch at the end of the week. That was how the week ended at Wiles and Fahey each Friday. We’d sit in the corner conference room at the end of the week, with the windows open, a cigar lit and a beer cracked, because we couldn’t afford Scotch, and laugh and catch up with each other.

We shared our victories and losses, celebrated births and weddings, grieved over the people we lost during that period together.
Chris and Ben were there for me though the various political races, giving me the time to fulfill my need for public service including the very dark period after the 1993 Mayoral primary,without ever complaining.

I remain blessed to have them in my life.

Happy Birthday Ben!!!!!

May you live 100 more.

It has been over two months since Donald Trump won the Presidency.

I had written quite a lot about the election and the danger that I believed Donald Trump posed if elected, both domestically and on the world stage.

In the interest of fairness, I decided to withhold any commentary about what kind of administration he might assemble and the direction it might take until I saw the people he would name to serve in his administration.

Looking at his cabinet choices and White House staff positions named so far, I’m afraid that the fears I held about what kind of administration he would preside over, are coming true.

While Abraham Lincoln assembled a “Team of Rivals,” Donald Trump is assembling a Team of Deplorables.

His choice for Attorney-General, the far right, racist dingbat, Jeffrey Beauregard Sessions, who represents Alabama in the United States Senate is a signal of what is to come. Sessions was one of the few judicial nominees in history to be denied confirmation by the U.S. Senate because racist remarks and views he held while a U.S. Attorney in Alabama during the Reagan Administration. His record on voting rights can be summed up in an episode where he indicted individuals that were registering African-Americans to vote in Alabama while he was U.S. Attorney. The jury hearing the case returned an acquittal in a matter of hours.

He has nominated Congressman Tom Price from Georgia to be Secretary of Health and Human Services. Price wants to repeal Obamacare immediately and strip the 20 million people who now have health care of their coverage. He is anti-choice, anti-LGBT and, along with Paul Ryan, would turn Medicare into a voucher system rather than a single-payer system.

His nominee for Secretary of Education, Betsy DeVos, is an enemy of public education. Married to an heir to the Amway fortune, DeVos and her husband are the deepest pockets of Republican Party contributors in the state of Michigan. She championed vouchers and charter schools in an effort to starve the public schools in Michigan. When her campaign to expand charter schools in Detroit resulted in academic performance disaster, she resisted any attempt to remedy the situation legislatively.

Trump’s choice for Secretary of Housing and Urban Development, former presidential candidate, Ben Carson, will preside over an agency, notwithstanding his previous admission that he lacked the experience to run a cabinet department and has no background whatsoever in the issues the department must address.

Former Texas Governor, Rick Perry, is nominated to head the department of Energy. During the 2012 Republican primaries, Perry advocated abolishing the agency on the occasions he could remember its name.

Trump’s choice to head the Environmental Protection Agency, Scott Pruitt, is a “climate change denier.’ Pruitt has made it his career to sue the agency he has been nominated to run on behalf of the oil industry while he was Attorney-general of Oklahoma. He has been known incorporate oil company opposition arguments verbatim into his court filings and position papers on behalf of the state of Oklahoma.

The nominee for Secretary of Labor, an agency whose mission is to protect workers, is an opponent of an increase in the minimum wage and a rule that would make more employees eligible for overtime pay. Andy Puzder is the CEO of the parent company that owns Hardees, the fast food restaurant chain. Ironically, it was the fast food workers who were in the forefront of the successful campaign to raise the minimum wage to fifteen dollars per hour.

The two most deplorable choices do not require confirmation by the United States Senate.

Trump has chosen retired General Michael Flynn to be his National Security Adviser. Flynn apparently earned trump’s loyalty by leading Trump supporters in chants of “lock her up” about Democratic Presidential candidate, Hillary Clinton, at the Republican National Convention and at various events on the campaign trail to the embarrassment and chagrin of other military leaders both active and retired.

Flynn was fired from his position as Director of the Defense intelligence Agency because of his inability to work with others in the intelligence community. Part of the problem was he felt he was entitled to his own set of facts, whether true or untrue, which his colleagues called “Flynn Facts.”

Flynn has a demonstrated inability to be able to distinguish “fake news” from real news. During the campaign he often retweeted fake news stories that were obviously fabricated including one alleging that Clinton, former President Bill Clinton and others were involved in sex rings involving pedophilia. Flynn’s son, who was employed by the Trump Transition Team and slated to be his father’s assistant, was fired after an incident that occurred in a Washington, D.C. pizza parlor. The incident involved a gunman taking over the establishment and firing a gun, while claiming to “investigate” a fake news story that the restaurant was the site of a child sex trafficking ring. Once order had been restored and the fake news story debunked, Flynn’s son took to his twitter account to declare that the fake news story was true until proven otherwise.

Needless to say, common sense and good judgement isn’t part of the Flynn Family’s genetic makeup.

While the lack of these characteristics might be excused in many cases, having a National Security Adviser, who lacks them, making decisions about war and peace and possibly nuclear Armageddon is a bit disconcerting.

The other appointment that should send a shiver up the spine of every American is that of Stephen Bannon as Senior Counselor and Chief Strategist in the soon to be Trump White House. Bannon was a founding member and Chief Executive of Breitbart News, the anti-Semitic, anti-Gay, anti-Muslim, anti-immigrant, racist, sexist, xenophobic news organization which is a haven for Klan leader, David Duke, neo-Nazi’s and a wide assortment of hate groups. It appears that at long last America has its own native Joseph Goebbels.

One can only wonder what strategies will be employed.

We are about to inaugurate the fourth President in our history who has lost the popular vote.

His mission should be one to unite us rather than divide us.

These choices don’t do that.

America deserves better.

Last month, just before Christmas, I went to view a photography exhibit at the Whitney Center on the campus of Onondaga Community College.

The exhibit was one from the National Archives titled “Picturing Nam.” it was a collection of fifty photographs from the Vietnam War taken by photojournalists, military photographers and ordinary G.I.s. They were taken in the villages and jungles of Vietnam during the span of 1965 to 1975.

Some of the photos were color, others were black and white. All of them were haunting.

There was a color photograph of a young Marine, who appeared to be barely 18 years old, taken near Da Nang in August 1965. He had the faraway look of someone who had already seen too much and would never forget what he had seen, much as he might try to. You couldn’t help but wonder whether he had survived his tour or became one of the earliest of the 57,000 plus who would give their lives.

There was a color photograph of an Infantry Company in the midst of a “search and clear” mission of the kind that my friend Larry Hackett would tell me about after he survived his combat tour and before he was killed by Agent Orange, the defoliant used by our government with no warning to the troops.

Indeed, there was a color photograph, taken in 1966, of an aircraft spraying Agent Orange as part of what was called “Operation Pink Rose.” 255 flights in which 255,000 gallons of Agent Orange were used to defoliate portions of the country. It was deemed to be a “limited success.”

The exhibit had a photograph of Napalm exploding a Vietcong structure south of Saigon.

A photograph titled “Ambush” captured a scouting operation caught by surprise in February 1968 and the body of a dead Marine killed at the beginning of the fire fight.

Photographs depicting different aspects of the life and death of a Vietnam tour were part of the exhibit, ranging from a Catholic priest saying Mass on a Fire Base, to an aerial view of a bombing run over North Vietnam, to surgery and other medical care being provided on a ship off the coast.

It depicted GI life from the mundane reading of a newspaper by a GI who was a member of the Ist Air Cavalry on the Cambodian border to the hollow-eyed expression on the faces of Marines observing one of their own getting First-Aid during the Battle of Hue.

This wasn’t the first photography exhibit about the War in Vietnam I had gone to see.

Almost twenty years ago Larry and I had driven to Rochester see an exhibit entitled Requiem which displayed the work of 135 photographers who had been killed in the war. There were many more photos in the exhibit than the 50 I recently viewed at the Whitney Center.

In some cases the photographs were taken from the last roll of film that the photographer was shooting when he was killed. That fact coupled with the devastation and carnage displayed in the photographs made the images even more haunting.

The exhibit was later published in a book also entitled Requiem. Unbeknownst to me, Larry bought the book.
A decade later, after he had died from cancer caused by his exposure to Agent Orange, his wife Alice gave me the book. It remains one of my most prized possessions.

After viewing the exhibit at the Whitney Center this past month, I opened Requiem again and leafed through its pages once more.

I thought about the many veterans who die from Agent Orange, kill themselves because of Post-Traumatic Stress Disorder and other maladies resulting from their combat sacrifices.

It occurred to me that we are very fortunate that we have the photographs from these exhibits and books because, as a nation, it seems that is the only way in which we remember them.