Month: April 2017

Two weeks ago, on Easter Sunday, my sister Mary passed away.

Easter is not a good holiday for my family.

Four Easters ago, my sister Jane, informed us that she had stage four Melanoma.

Despite putting up a heroic struggle, she was gone by that Christmas.

Mary’s death from a severe stroke was both sudden and unexpected.

It left all of us family members in a state of shock.

As we met that week to plan her services, I recalled that after Jane’s funeral she had asked if I would say a few words about her too.

This memory was no sooner out of my mouth, when my daughters, Meghan and Kate said, “Dad, we’d like to do it.”

I agreed and during the next few days and her calling hours, they obtained stories and thoughts about her that they wove into a beautiful eulogy.

I’d like to share it with you, so here it is.

Meghan: If my Aunt Mary were to describe her upbringing, she would probably have said that she was a “Prisoner of War.”

Katie: And she would have been right.

Meghan: Unfortunately for her, she was the first girl born into an Irish-Catholic family and had three older brothers who would tease her mercilessly.

Katie: She told me on one occasion, that the three boys locked Mary and her sister Jane in their bedroom, and then couldn’t get the door unlocked to let them out.

Meghan: They finally gave up and took the door off the hinges.

Katie: Aunt Mary was a gifted person, who could read music more easily than most people can read the newspaper. Everything seemed to come to her easily.

Meghan: She had an extensive vocabulary, and there were some words she used more than others, one in particular that she favored…which, ah, began with the same first letter as her last name.

Katie: She was a gifted pianist, a talented actress, and a straight A student. Her parents never knew about the straight A’s though, because her brothers would pay her to not show her report cards to her father.

Meghan: They knew that he’d want to see theirs next.

Katie: Her piano recitals were always on a Sunday afternoon.

Meghan: Her father, to his credit, would give up watching his New York Giants game to attend.

Katie: He was the guy you saw sneaking out in the dark as soon as she was done playing.

Meghan: As a Drama student at Buffalo State, she performed in some interesting plays.

Katie: In one, titled “Bird Bath,” she and the other performers flapped around the stage for an hour without any dialogue.

Meghan: Her brothers went to see it, but not because they were interested in the play.

Katie: Because they wanted to watch their father sit through it.

Meghan: His reaction was much more entertaining.

Katie: After graduation, she took a staff position with the National Endowment for the Arts in Washington, D.C.

Meghan: She loved to recall how the actor, Clint Eastwood, who was a board member, was so very short when you saw him in person.

Katie: She then enrolled at the University at Buffalo Law School, where she was a talented and brilliant writer on the Law Review.

Meghan: She was enormously proud of an article she wrote about the Constitution’s double jeopardy clause, which was ultimately cited as authority by United States Supreme Court Justice, John Paul Stevens.

Katie: After graduation, she served as a law clerk in the Appellate Division Fourth Department, where she made friendships with other law clerks and judges that she cherished for the rest of her life.

Meghan: She had the experience of working for a large law firm on Wall Street in New York City for a number of years before the tug of her family and home town brought her back to Syracuse. I was still a young kid when she moved back, and I remember that every year for my birthday, she would make a special date with me to take me out to lunch and the movies to celebrate.

Katie: Every year for Christmas, Aunt Mary would tell her nephews, Conor and Ryan Suddaby, to name three famous athletes from whom they would want autographs. Every year, she would manage to get a personalized and certified autograph from one of the three for each of them. They still say they had the best autograph collections of anyone they knew growing up.

Meghan: One year, my Aunt Jane and Uncle Glenn wanted to go away overnight for their anniversary. I often babysat for Conor and Ryan, but I wasn’t old enough to stay overnight without an adult present. So Aunt Mary happily agreed to be the responsible adult for the evening. Everything was going great, and Conor and Ryan were each asleep in bed for the evening, when Aunt Mary decided she wanted to go out in the garage to have cigarette. I walked out there with her, and the next thing I knew the door had slammed shut behind us and we were locked out of the house. We looked all over for a spare key and couldn’t find one, so Aunt Jane and Uncle Glenn had to drive back from Cazenovia to let us into the house. After that, every babysitter was provided with a spare key.

Katie: While I was in college, Aunt Mary took me to New York to see some shows and to introduce me to her college boyfriend Tom Fontana. We had a blast! Tom is a very successful Hollywood writer with a laundry list of accomplishments – but what Aunt Mary always wanted everyone to know about him MOST was that this was the guy whose glasses flew out of a dorm room window because she slapped him so hard for kissing another girl. You don’t mess with Aunt Mary.

Meghan: Aunt Mary had many, many talents, however, she was the first to tell anyone that domestic tasks were not one of them. My friend Justin Coyne managed her household for many years and was wonderful to her. At one point she told Justin that her future headstone should read: “She knew how to delegate.”

Katie: But there was no area of the law that she couldn’t master, from election law, to discrimination law, to criminal law. Over the course of her legal career, she served as an assistant district attorney for Bob Wildridge, and as a law clerk for Judge Stewart Hancock.

Meghan: She eventually worked in the Onondaga County Attorney’s Office, where she shared an office with Al Julian. This pairing may have been a strategic move by their bosses, as they both liked to yell, and we think what they meant to say was FAHEY, out loud, but in their excitement they confused it with another F-word. PAUSE. She was very happy as she finished out her career there. And I’ve heard that at one point, her colleagues even got her cake to commemorate her ability to use that other F-word so many times in the same sentence.

Katie: After Aunt Mary retired, a very kind and thoughtful neighbor started helping her with yard work and occasional maintenance items around her house, refusing to accept any payment for his help. She noticed that he often referred to her as SISTER Fahey, and assumed he had simply forgotten her last name. Imagine her surprise when she learned he had mistaken her for a nun! Never one to miss a chance for a little humor, including at her own expense, she chalked up the mistake to her own lack of fashion sense, and insisted that while she might not be a “frequent flier” at church, she DID have a relationship with God, which consisted of her frequently taking His name in vain.

Meghan: She was a fearless advocate for her clients. No one, and I mean no one, could intimidate Aunt Mary. She was also a loving and protective aunt for her nieces and nephews. Woe to the person who attacked or hurt a family member, because she had an elephant’s memory and never forgot them.

Katie: I guess you could say she had Irish Alzheimer’s before anyone knew it existed.

Meghan: At the same time, she was incredibly generous, and always willing to help others who were less fortunate than her. She would help out with legal issues for free, and would even purchase and give away laptops, furniture, and other gifts to people she knew could not afford them. She sent many care packages to soldiers over in Afghanistan, and seemed to really enjoy being there to support people during hard times and trying help them in whatever way she could. When people close to her needed a place to recover from surgery, she would open her home, give up her bed, and sleep on the couch until they were whole again.

Katie: She was intelligent, tough, incredibly loyal, funny, talented, supportive, generous, irreverent, and compassionate. As many of you have said over the last few days: “She was a gem.” Thank you.

At the end of it, I can honestly say that I learned about her generosity to others that she knew and didn’t know and which she never talked about.

I’m certain that she would have loved the memories and anecdotes that her nieces recounted and shared.

I love their eulogy and, more importantly, I love them for doing it.

During the almost two decades I spent on the County Court bench, I witnessed some pretty horrific episodes of man’s inhumanity to man.

Some of the worst episodes involved defendants who were being prosecuted as “Juvenile Offenders.”

A juvenile offender was a defendant who was age thirteen and charged with murder as a sexually motivated felony or a fourteen or fifteen year old and was charged with certain very serious violent felonies.

A juvenile offender was eligible to be prosecuted in County Court as an adult rather than Family Court.

The principal difference between a juvenile offender and an adult, a person over the age of sixteen, was the severity of the sentence that could be imposed.

Sentences for an adult were determinate sentences for which the defendant had to serve 6/7 of the sentence imposed followed by a period of post release supervision during which the defendant could be returned to prison if conditions of release were violated.

An adult charged with a violent sex offense could be sentence up to twenty-five years, in some cases, and was not eligible for release until more than twenty-one years had been served.

A juvenile offender, convicted of the same offense, would have an indeterminate sentence imposed with a minimum and maximum range. Once the minimum sentence had been completed, the defendant was eligible for parole and had to be released after serving 2/3 of the sentence.

The other distinction between an adult sentence and a juvenile offender sentence was that the minimum and maximum sentence for a juvenile offender were much less.

An adult convicted of Robbery in the First degree could be sentenced to a determinate sentence of between five and twenty-five years. If sentenced to the maximum, twenty-five years, the inmate would be required to serve over twenty-one years with post release supervision.

A juvenile offender convicted of the same crime could not be sentenced to more than ten years and the minimum period of that sentence had to be 1/3 of the maximum.

Thus, the harshest sentence that could be imposed was a maximum of ten years and the minimum that had to be served was three and one-third years when the juvenile offender became eligible for release.

Two weeks ago, as part of the state budget approval, legislation called Raise the Age was passed and signed by the Governor.

It dramatically will change the way criminal prosecutions will be handled in New York’s courts.

The major change is that it raises the age of criminal responsibility from sixteen to eighteen.

All misdemeanors and violations will be handled in Family court rather than in City Court or Justice Court.

Almost all non-violent felonies will be prosecuted in Family Court too, since they would be transferred to Family Court after thirty days unless the District Attorney can demonstrate “extraordinary circumstances” which have yet to be defined.

The law further provides that these defendants may not be questioned without the presence of a parent.

It establishes a “Youth Part” in County and Supreme Court where prosecution of these most serious crimes will be conducted.

The most serious and questionable change, in my opinion, is that sixteen and seventeen year old defendants charged with violent felonies, will be treated the same way that thirteen, fourteen and fifteen year old defendants are.

Those case will remain in the Youth Part but could be removed to Family Court if no serious physical injury occurred, no weapon was used and no sexual conduct was engaged in.

If convicted of a violent felony offense, defendants under eighteen will be sentenced pursuant to the Juvenile Offender Law.

The New York Times reported that these cases number approximately 20,000 and amount to one percent of the cases affected.

That figure sounds light to me.

The law also raises the age for which a person could be adjudicated a Youthful Offender and have the records of any conviction sealed from nineteen to twenty-one.

The law has some ameliorative impacts that have merit.

Imprisoning youthful defendants in maximum security prisons with adults could have and should have been prohibited a long time ago.

Defendants that are less than eighteen should not be saddled with a criminal record for a violation, misdemeanor and some non-violent felonies but other feature fail to appreciate the current social climate.

We are living during a time when the cities are plagued by gang violence and increased shootings.

It isn’t hard to predict that when these changes take effect, those doing the killing will have less incentive not to take lives because they recognize they will be imprisoned for less time and will be back on the street much sooner.

One of my most memorable and horrific cases involved a fifteen year old who, over the course of several months, physically beat and tortured his pregnant girlfriend’s toddler to death on the pretext of imposing “discipline.”

I received a lot of correspondence from people that were experts and not experts, who urged me to take his age and immaturity into account when sentencing him.

There were two factors I took into account.

The conduct he had engaged in was so palpably wrong and sadistic that anyone would have appreciated it was not acceptable or normal.

I could not ignore that even in the animal kingdom, the young are not killed by the parent animals.

I also took into account that when I sentenced him to the maximum of ten years to life, he would be parole eligible at the age of twenty-five if they released him.

He would be able to start another relationship, father more children, and engage in this abuse all over again.

I also cannot help but reflect on the fact that if this law had been in effect when Police Officer, Wally Howard, had been murdered by a sixteen year-old gunman, that killer would have been back on the street a long time ago.

When I ponder these changes and Governor Cuomo’s celebration of them, I can’t help but remember something my mother used to say.

“The road to hell is paved with good intentions.”

I’ve heard it said, that when you turn over a rock, what you will find isn’t pretty.

This past week, it was reported that Fox news commentator, Bill O’Reilly, and Fox News have paid out millions of dollars to settle claims of sexual harassment brought by several women against O’Reilly.

The New York Times and the Los Angeles Times have both reported that O’Reilly and Fox have paid thirteen million dollars to settled claims brought by five women since 2002.

Late last year, Fox had to pay former anchor, Gretchen Carlson, twenty million dollars because of sexual harassment from its News Chief, Roger Ailes.

Anyone who has ever seen Roger Ailes would recognize that Fox paying someone twenty million dollars because they had to entertain the prospect of having sex with him got off pretty cheaply.

I don’t mean to imply that being sexually propositioned by O’Reilly is worth less.

Ailes has since been accused of sexual harassment by nine other women who worked at the network.

One of his accusers is Andrea Tantaros who appeared on a Fox Program called “Outnumbered.”

On one episode of the program, their guest, Keith Ablow, mocked and mimicked Vice-President Joe Biden’s public, tearful expression of grief over the death of his son Beau.

Ablow is an expert contributor to Fox News on the subject of …………………………Psychiatry.

Apparently, he skipped the training in grief counseling during medical school.

After watching that segment, it is difficult for me to summon any sympathy for Tantaros.

To no one’s surprise, the groper-in-chief that currently resides in the White House declared that he doesn’t think that O’Reilly has done anything wrong.

That is not hard to believe, if you have listened to the Access Hollywood tape on which he and Billy Bush describe their right to man-handle and grope women.

Some might wonder whether I would criticize Bill Clinton in this fashion.

In earlier blog posts I have said that if I were Monica Lewinsky’s father, Clinton would have needed dental work a long time ago.

The United States Department of Justice is investigating the propriety of the corporate monies used to settle the Fox News sexual harassment claims.

Sexual harassment isn’t the only offensive conduct under scrutiny at Fox News.

Fox News fired a financial executive in the accounting department after she made repeated racist derogatory comments about African-Americans while overseeing a department that has a large number of African-American employees.

Two of the employees have brought suit against Fox in New York State Supreme Court.

O’Reilly, not just content to be sued for sexual harassment, is also fending off claims that he made a racist comment for describing an African-American Congresswoman’s hair as resembling a “James Brown wig.”

In the wake of the Carlson multi-million dollar settlement, sexual harassment claims against Ailes are cascading.
Others making such claims include Megyn Kelly.

Ailes is probably sleeping soundly at night since Fox reportedly payed him forty-million dollar as part of his severance package.

In the meantime, a well-organized boycott has cost O’Reilly over fifty advertisers.

Major advertisers such as Lexus, Mercedes-Benz, All State and Angie’s List have pulled their ads.

Fox should probably consider changing its slogan from “Fair and Balanced” to simply “Unbalanced.”

It would be more accurate and nobody could call it “Fake New.”

There are two species that I’ve always found to be entertaining throughout the course of my life.

The first is a really good con man.

The second is a hypocritical politician.

During my years doing criminal defense work, I represented a fair number of con men.

During my years on the bench I encountered even more.

A really good con man leads you to believe in the validity of the con itself. They are convinced that if they can “just explain it” to you, you’ll understand why it’s not a con.

I once sat through an eight week mail fraud trial with a defendant who kept repeating, “If I could just talk to those jurors, they’d understand.”

Since failing to take responsibility usually led to an enhanced sentence, I wouldn’t let him “talk to those jurors.” Instead, he got a chance to “just talk” to the judge at sentencing.

It didn’t help him a bit.

As a judge, I sometimes agreed to a specific sentence if making restitution to the victim before sentencing was a part of the agreement.

Occasionally that led some con men to perpetuate another con to fulfill the restitution requirement.

When that was uncovered, the defendant found that it didn’t help him at all.

Politicians caught up in hypocrisy seem to bear many of the same traits as con men.

They spend their careers adamantly proclaiming the virtue of their beliefs only to discover that the stench of hypocrisy doesn’t ever completely wash off.

Two examples of this come right to mind.

Former Louisiana Senator, David Vitter, is one.

Vitter was part of what I often call the “American Taliban,” politicians who feel it is their duty to legislate extreme morality.

Thomas Babington Macaulay once said “The puritan hated bear baiting, not because it gave pain to the bear, but because it gave pleasure to the spectators.”

Think Ted Cruz.

Vitter was every bit as judgmental and rigid as Cruz. He opposed gambling, teaching evolution, sex education, abortion and Louisiana’s Child Health Insurance Program. He was a big proponent of prayer in public schools.

But, like many political Pharisees, he had his secrets.

His became public when his name turned up in the address book of the DC Madam that was running a prostitution ring.

Another was former Senator Larry Craig of Idaho.

Craig was an outspoken critic of President Bill Clinton’s affair with Monica Lewinsky.

He supported legislation that would prohibit federal benefits to same sex couples.

He voted against legislation that extended the definition of a hate crime to include sexual orientation.

So, it came as a bit of a surprise in 2007, when Craig was caught soliciting sex in the Men’s Room of the Minneapolis –St. Paul Airport.

We could debate whether the current occupant of the White House should be included in the category of con man or political hypocrite or both, but that is not the subject of this blog post.

It was reported last week that a defendant who is being prosecuted by the United States Attorney in the Southern District of New York for violating the law prohibiting dealing with Iran has hired a new legal team.

He has hired former Mayor of New York, Rudy Giuliani, also a former United States Attorney for that District, and former Attorney-General Michael Mukasey.

We will put aside the fact that Mukasey’s son is expected to be nominated to fill the position of United States Attorney, formerly occupied by Preet Bharara and is currently a partner in Giuliani’s law firm.

Giuliani has also been paid to represent the Peoples Mojahedin Group of Iran that the U.S. State Department once listed as a terrorist organization.

In the wake of the September 11th attack on New York City, Giuliani became known as “America’s Mayor.”

Giuliani loudly criticized President Obama for easing sanctions that were imposed on Iran.

This past year, he campaigned for Donald Trump, leading chants of “lock her up.”

Two decades ago, Mayor Giuliani, famously ejected PLO leader, Yasser Arafat, from a concert being held to commemorate the 50th Anniversary of the United Nations being performed at Lincoln Center.

If that concert were being held today, all Arafat would have to do, is write Giuliani a sizeable check and he would be able to enjoy the music.