Friday, June 25, 2010

The Limits of Disclosure

Earlier this year Manhattan Surrogate Nora Anderson was acquitted by a jury on charges of false filing in conjunction with her successful campaign to be elected to preside over estate matters. Her prosecution came about because a colleague allegedly gave her a large sum of money which she transferred to her campaign. The charge was that this was a scheme to evade the campaign contribution limits and disclosure laws.

Because of some complicated procedural issues, the only charge that went to trial was “false filing.” The disclosure statements filed with the Board of Elections indicated that the contribution to the campaign came from Judge Anderson not from her colleague. A candidate is allowed to contribute an unlimited amount to their own campaign. Judge Anderson had very skillful attorneys at trial who argued, among other things, that the false filing charge made no sense. If Judge Anderson had reported the contribution to her campaign as coming from her colleague, it would have been literally untrue as the funds came from her account via a check she wrote.

Since the trial, the Manhattan District attorney’s office has asked the New York legislature to enact a law that would require every candidate for public office to disclose all gifts from any source that they received in the past year. If your mother gave you $10,000 to help pay your daughter’s college tuition, that would have to be disclosed. The theory is that if the government can see all the gifts you got and compare them to moneys received by your campaign, they might be able to detect an illegal contribution.

This is a dubious proposition at best. First, Judge Anderson’s contribution and its ultimate source was discovered without such a statute. Second, why should the government require citizens to disclose activity that is perfectly legal (like getting a $10,000 gift from your mother) in the hope of finding some illegality? It is an invasion of privacy and an imposition on those seeking to run for office.

It makes me think of the Mann Act, a federal statute that makes it a felony to “transport” a person across state lines to engage in “prostitution, or in any sexual activity for which any person can be charged with a criminal offense….” Under the logic of the Manhattan District attorney, the government would be justified in requiring every person who crosses state lines with another person to report that to the government just in case it turns out that the purpose of the trip was to engage in prostitution.

Something is wrong when the people charged with enforcing the law think this way.

Tuesday, June 1, 2010


A New York appellate court recently upheld the manslaughter conviction of John White, an African American man living on Long Island for shooting and killing one of 5 white high school students who came to his house shouting racial slurs and threatening to harm his teenage son. White’s defense was based on “justification,” that as a black man who, while growing up, had experienced racial discrimination and been told that two family members were killed by the KKK, he understandably armed himself with a pistol and used it to protect himself and his family without intending to shoot the victim.

Legally speaking, a person is justified in using deadly force if he or she “reasonably believes” it is necessary to protect their home against an intruder. The jury rejected this defense, and in reviewing the evidence, the appellate court concluded that the defendant did not have such a reasonable belief. The legal standard applied by the Court was:

“A determination of whether a defendant has a reasonable belief that deadly force is necessary to prevent or terminate a burglary requires the application of a reasonableness standard which has both objective and subjective elements. ‘The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant's background and experiences would conclude’"

This standard has as its premise that 12 jurors who may or may not have shared a defendant's life experiences can determine whether or not the defendant's fear of harm to himself, his home and his family was reasonable. What does that mean? If the fear was “unreasonable” but, nonetheless, the defendant experienced it, why does that make him guilty?

In a diverse society with a history of racial conflict, how do we determine what is reasonable for another person to believe. Is the application of the “reasonableness” standard really another way of determining whether or not the defendants’ claim is credible. Perhaps, but it is one thing to ask do you believe that the defendant felt as he said he did and, given how he felt, was he justified in resorting to deadly force, and quite another to ask one group of people, called a jury, in this case one with ten white people, one black and one Latino, to determine whether or not another person’s, a black person’s, feelings of fear were reasonable.