Tuesday, March 20, 2012

Persistence Pays Off

A rather remarkable personal odyssey has ended in the admission of an applicant to the New York Appellate Division for the First Judicial Department. The applicant was admitted in New Jersey in 2005, as well as in several federal courts.

The court described the background story:

Petitioner, a twice-convicted felon, submitted his tenth renewed application to the Committee on Character and Fitness for admission to the bar. The unusual and lengthy history of petitioner's efforts to gain admission to the New York bar has been affected by differing views of whether petitioner has the moral character and fitness to practice law. The impediment to approval has been the serious crimes committed by petitioner years ago. In prior applications, we judged the passage of time to be insufficient to evaluate the success and sincerity of his rehabilitation.

The salient events and ensuing criminal trial conducted over a quarter century in the past can be briefly summarized. Principally, petitioner was convicted in federal court in connection with his operation of a business from about 1980 to 1982 that had the appearance of legality but which was actually an illegal enterprise for distribution of Quaaludes. Petitioner ran putative sleep clinics where he would direct drug purchasers to physicians participating in the scheme, who would then write prescriptions for the purchasers, which would be filled by participating pharmacies. The scheme was both extensive and financially successful and allowed petitioner to lead a flamboyant lifestyle, including his own extensive drug use. However, his life increasingly spiraled out of control and, as federal authorities closed in, he entered into a despondent emotional state that manifested itself in criminal acts committed in July 1983 against his former girlfriend, who also was involved in the drug distribution scheme. Although the girlfriend had separated from petitioner and moved out months earlier, she yielded to his request to see her again. When they met, he displayed a gun and kept her in her apartment for more than seven hours until she tried to escape while he was in the bathroom. As she jumped from the second floor apartment and tried to flee (seriously injuring herself), petitioner fired five or six shots in her direction but did not hit her. According to petitioner's testimony, he had told her that he intended to commit suicide.

Petitioner was arrested, and in 1985, after a jury trial in Richmond County, he was convicted of attempted murder in the second degree, burglary in the first degree, unlawful imprisonment in the first degree, criminal possession of a weapon in the third degree and criminal use of a firearm in the first degree for which he was sentenced to 12½ to 25 years (People v Wiesner, 129 AD2d 753 [1987], lv denied 70 NY2d 658 [1987], lv dismissed 71 NY2d 1034 [1988]). In 1987, he pleaded guilty in the Southern District of New York to conspiracy to violate federal narcotics laws and to distribution and possession of Quaaludes. He was sentenced to time served, having been in federal custody since his December 1984 arrest.


After his release from prison, in a remarkably short period of time, petitioner obtained a college degree and a law degree from CUNY School of Law, and passed the bar in 1994. These academic achievements reflect well on petitioner's intelligence and competence, and demonstrate his capacity to reassert control over his future. However, these achievements, while commendable, do not resolve the issue we must determine, which is whether petitioner has been sufficiently rehabilitated to satisfy the character and fitness requirement set forth in Judiciary Law § 90 for admission to the bar.

As to admission:

The amount of time during which petitioner has been beneficially engaged in his profession, including pro bono and community work, coupled with the persuasive and often heartfelt testimony of witnesses who have developed a deep familiarity with him — some of whom by experience and training are well equipped to scrutinize his personal development — persuade us of the success of his rehabilitation. It is telling that petitioner's character references hailed from respected positions of advanced achievement and, themselves, enjoy reputations for high moral character. While readily conceding that this Court cannot foretell the future, we return to the earlier observation made that we cannot reach into the internal workings of petitioner's mind to gauge his character, but must generally rely on his conduct as an accurate manifestation thereof. Crediting his witnesses and taking into account his postrelease conduct and achievements, the manner in which he makes himself available to help individuals and his contributions to the betterment of society — matters to which all witnesses have attested — as well as the absence of conduct contrary to the ethics governing the legal profession over an extensive period of time, it is manifest that petitioner has rehabilitated himself to such an extent that he satisfies the character and fitness requirement set forth in Judiciary Law § 90.

Further, petitioner's expressions of remorse, which are both extensive and have the ring of candor, were consistently corroborated by the testimony of the witnesses. Petitioner's memories and perceptions of his actions and motivations on the night he fired shots towards his fleeing former girlfriend, remain consistent with his earlier testimony that he did not intend to hurt and shoot her. The subcommittee elicited that petitioner at that stage in his life was constantly intoxicated by drug use, primarily amphetamines and Quaaludes, and he had taken an entire bottle of 30 prescription pills (Tenuate Dospan) on the day in question. This was not a drug he was accustomed to taking, and the effect on him was unfamiliar. He described himself as "super-wired," and appreciated how this might have frightened his former girlfriend. However, at no time did petitioner try to justify his actions as being the consequence of intoxication; rather, it was the subcommittee that elicited this contextual information. Although petitioner recalled what he perceived to be his intent, his memory was blurred as to many events of the evening.

The subcommittee, having had the opportunity to scrutinize petitioner's demeanor during his testimony and to examine him, summarized in its report that petitioner was "stoned" on drugs at the time, that he was not being intentionally untruthful in his characterization of the events of that evening as he recalled them, and that, at the time of the incident, he was obviously in a highly agitated state, enhanced by the drugs he had taken. Significantly, the record also reflects that there is not one scintilla of evidence that he acted violently or even recklessly with attendant violent result on any other occasion. All witnesses, to the contrary, describe a peaceful and considerate, if hyperactive, person. The subcommittee concluded that petitioner "expressed palpable remorse for his past criminal conduct" and that his "present respect and passion for the law were abundantly obvious from his testimony."

Based on this record, the dissent nevertheless would impose on this particular petitioner a threshold for moral character that suggests an endless quest in which petitioner will never succeed. The dissent, although casting its net wide in reviewing how moral character has been variously defined, appears to employ a much narrower standard as it drills down decades into the past to give new life to 30-year-old crimes to conclude that petitioner has not fully accounted for that past and, thus, lacks candor. The dissent devotes a substantial portion of its writing to extensively detailing petitioner's prior illegal conduct surrounding the detention and shooting incident involving his former girlfriend, in effect, trying petitioner all over again for the crime of attempted murder and related counts committed well past a quarter of a century ago; but for which petitioner had pleaded guilty and served time for these crimes ages ago. Moreover, the dissent's conclusion that petitioner has started the journey towards rehabilitation but is "not there yet," begs the question: how is petitioner to get "there." In the dissent's formulation, it seems that petitioner must testify that he intended to kill his former girlfriend and shot at her, fortuitously missing, in furtherance of that intent. However, petitioner's consistent testimony has been to the contrary. Perhaps his drug intoxication at the time confused his motives as well as his memory, or perhaps he sincerely believes that the way he remembers the event is the truth. Perhaps, in fact, it is the truth. We really cannot know. However, with respect to what petitioner truly believes, this Court cannot ignore that his sheer doggedness in adhering to his earlier, somewhat muddled, explanation has likely not helped him over the past many years during which he has sought admission. Yet, there was little incentive for petitioner to testify that he lacked culpable intent, especially since he was already convicted of attempted murder in the second degree, on a plea of guilty, even if it was an Alford plea. Although the dissent dismisses our review of the testimony as paying mere "lip service" to candor, to the contrary, we have carefully evaluated petitioner's candor without resorting to any preconceived assumptions. In the final analysis, the dissent seems to be speculating about petitioner's mindset, and to get "there," it seems that petitioner would have to change his testimony to conform to the dissent's expectations. However, we cannot rest our analysis on the dissent's preferred outcome. The dissent characterizes our finding as a "whitewash," but, as is evident in our analysis and discussion above, we have scrutinized an extensive record to arrive at what we find to be an appropriate and just result.

The lengthy dissent concludes:

 I have never suggested that petitioner's rehabilitative efforts and accomplishments be ignored; I recognize that petitioner has started down the road to redemption and rehabilitation. But, he simply has not gotten there. Despite the lengthy period of time that has elapsed, and petitioner's unblemished professional record, the grant of his application is premature, because he has not established his complete rehabilitation and will not be able to do so until his testimony fully acknowledges, and either admits, explains, or challenges the evidence contained in the trial transcript as to his past criminal conduct, rather than simply skirting around it. The majority has, in effect, accepted a new, watered-down standard for admission. It accepts that the mere passage of a lengthy period of time after an applicant completes a term of imprisonment for a serious felony conviction, during which period the applicant lives an unblemished life, combined with a murky expression of remorse and little acknowledgment of his wrongdoing, is enough to warrant admission to the bar. I do not believe that has ever been the standard for bar admission in New York, nor should it be now.

The majority opinion notes the extensive favorable character testimony on behalf of the applicant. The opinion notes, and the dissent concedes, that he has practiced in a competent and ethical manner since his admission in New Jersey. (Mike Frisch)


Bar Discipline & Process | Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference Persistence Pays Off:


Post a comment