Norman and Aide Indicted.
But Will the Charges Stick?
By Henry J. Stern
November 19, 2003

    A Kings County grand jury has indicted Democratic county leader Clarence Norman and Jeffrey Feldman, the party's executive director, for allegedly requiring judicial candidates to pay substantial sums to hire particular individuals as consultants as a condition of receiving the Democratic nomination.  This is a different accusation than the Legislative expense account chiseling that was the basis of last month's indictment.  The defense to the latest charge will most likely be:  1) We didn't do it   2) Everybody else does it   3) Even if we did it, it's not a crime.

    It is not unreasonable to ask candidates for public office to pay part of the expenses of their campaigns. The issues in this case are:  1) Were the contributions actually spent on services which were expended for a judicial candidacy, or was the transaction a sham to cover a payoff?    2) Did any part of the money accrue to the benefit of individuals, like the county leader or his associates?   3) Was the contribution a condition, precedent or subsequent, of the judicial nomination?
 
    In reality, no campaign expenses need be incurred by a Democratic candidate for Supreme Court in Kings County.  Once nominated by the judicial convention, he or she is assured of election in the heavily Democratic county, just as Republican candidates are certain to win upstate.  Therefore, a contribution has no necessary electoral purpose, but it could be used to pay the operating expenses of the county.  One may ask, if the candidates, the direct beneficiaries of the party's endorsement, do not make ‘gifts’, who else will support the Kings County Democratic party?

    Other potential donors are lesser jobholders seeking retention or advancement, including the chance to be a judge next year, city contractors who believe it is helpful to have good relations with the county organization, a handful of political buffs who go to political dinners to mingle with people who they feel are important or useful to know, or to get a night out with friends.  It is highly unlikely that much revenue comes from idealists interested in supporting the Brooklyn Democracy, or upholding the principles of equal justice for all and merit selection of judges.
 
    The Democratic machine is well served by its hired spokesman, Bob Liff, a former Daily News and Newsday reporter who now works for George Arzt.  Liff’s task is to make it appear that these transactions are normal political activity.  If bribery and extortion take place so often that they may be considered normal, is the briber or extorter (it takes two to tango) guilty of a crime?  On the other hand, if the prevalence of crime confers immunity from punishment, then who can be prosecuted, and how do you prevent future crimes?
 
    Those who condemn the sale of judgeships should support the indictment, if the evidence justifies the case.  District Attorney Hynes is a most unlikely prosecutor; since he was first elected in 1989 without the support of the machine (when the previous DA, Elizabeth Holtzman, ran for City Comptroller; she was elected then but was defeated for re-election in 1993 by Alan Hevesi, who in turn was defeated for Mayor in 2001, but resurfaced and was elected State Comptroller in 2002) he has not been notably active in prosecuting public officials.  The case against corrupt Brooklyn councilman Angelo Rodriguez (which I wrote about in my first three articles for New York Civic twenty months ago) was made by the United States Attorney for the Eastern District of New York.
 
    Hynes was first elected as a non-machine candidate, but the one politician he appears to have pursued most avidly is John Kennedy O'Hara, a perennial loser despite his name, who was nailed for misrepresenting  his legal residence in order to run for local office.  The case is described, from the defendant's point of view, in an article in the Courier-Life newspaper.  If you want more, just google O'Hara's full name, under which there are fifteen entries.
 
    This week’s indictment is justified if it is borne out by the facts.  For example, is there evidence that the payments were shared with Norman or Feldman?  What is the real value of the services alleged to have been performed by the printer and the consultant?  Were other candidates required to make these payments, and, if so, why aren’t they in the indictment?  The merit of this case does not depend on whether the accused are convicted, (cf. Robert Durst and O.J. Simpson). But there must be a showing that the defendants deliberately engaged in wrongful conduct.  If proof of such conduct is not offered, .to the satisfaction of reasonable and disinterested observers, then the prosecution will fail the test of fairness.

    We all abhor the sale of judgeships.  We know there are hacks, dopes and probably some  crooks on the Brooklyn bench.  It is unlikely that Victor Barron and the three Garsons, whose cases were handed to the  D.A., are the only rotten apples in the barrel.  But conviction requires proof, and that is the burden the prosecutor faces.  He runs a large office, with a total staff of 1200 and a $68,000,000 budget. Of course, there is a lot of crime in Brooklyn for him to prosecute.

    Let us hope that this case will be well prepared and well argued, and that justice will be done.  At this time, we do not know what all the evidence will be.  There is a critical difference, however, between knowing that people are shady characters, likely to commit crimes, and proving beyond a reasonable doubt that they have done so.  Having secured the indictments, it is the District Attorney’s responsibility to prove the case.

Henry J. Stern is the director of NYCivic.