Mayor Seeks Reform, Velella Seeks Freedom

By Henry J. Stern
November 12, 2004

Mayor Wants Appointed Judges, Easier Ballot Access,
Elections Board Reform And Limitation or Prohibition
Of Campaign Contributions by City Contractors
 
Wednesday morning (Nov. 10), Mayor Bloomberg made a fine speech at the Penn Club to the Fund for Modern Courts, advocating four important reforms for the conduct of state and local government. They are improved ballot access, merit selection of judges, regulation of campaign contributions by people doing business with the city, and reorganization of the Board of Elections. Three of these issues are matters of state law and the state Constitution. Campaign contribution rules are set forth in local law.
 
You can link to the text of the mayor's speech as delivered, which is stronger than the prepared text. Unfortunately, he is unable by himself to adopt any of the proposals he cited. They require legislative consent, which is highly unlikely to be forthcoming from our self-serving legislators, city and state.

The speech does illustrate the problems reformers face in trying to make our political system open and responsive to the general public and to prospective candidates for public office. As I wrote years ago, the nomenklatura protects itself.

 
Are We Paying Too Much Attention to Guy J. Velella?
Why I Think Not -- The Case Transcends the Senator.
 
Our complete coverage of the case of Senator Velella's early release has divided our readers. Some congratulate us on following the unfolding issue so closely, compiling and referencing local press coverage and making public documents fully available to those interested in the machinations involved. Others say, 'Enough, already.' Either they don't think the matter is that important, or their curiosity has already been satisfied, or they are more interested in other important public issues which necessarily receive less attention.
 
We hereby undertake to limit Velella coverage to semi-weekly (that is, twice a week; every two weeks is bi-weekly, which is equal to fortnightly, from which the number fourteen is derived).  In addition, starting Monday, the travails of the Velella 5 will not exceed half of what we write. We will continue to provide media links so that scandal junkies can keep up with all aspects of this unusual case, which continues to unfold as it impacts on the body politic. One previously-unknown entity, LCRC, has been outed, thoroughly purged and then re-staffed. We cannot remember such a makeover at a city agency.
 
There is a real problem that reporters and bloggers face in dealing with an issue so picaresque. After a while, readers tire of hearing about a particular scandal, even if there are new twists in the case. But when coverage drops off, perpetrators of wrongdoing breathe easier, because less public attention is then focused on their misdeeds.


Corporation Counsel Finds Velella Release Was Invalid.
New Board Presumptively Agrees, But Doesn't Remand
Five Who Were Freed by their Dismissed Predecessors

Monday afternoon (Nov. 8), we carried an AP story about the LCRC decision that morning, which was reported to invalidate Senator Velella's prior release, and to invite him, his two buddies, and two unidentified prisoners to re-apply for early release. LCRC did not order the five men remanded to Rikers Island pending their new applications.
 
The Post, the News and Newsday demanded the senator's re-incarceration in editorials this week. To them, the issue is larger than one individual — there is always an argument for showing mercy to one man and letting him go free. But this case means more than any individual — it is a matter of justice and fairness — and everyone can see that this is an instance of very special treatment of a very special inmate with extraordinary connections — in the Senate, the social services community that he helped to fund, the correction officers union, which he championed with pension legislation, and other networks of which we may be unaware.
 
The new LCRC, in its first decision, gave the ex-inmates until Nov. 16 (Tuesday) to file new applications for early release, and set a hearing for Nov. 19 (Friday). Unstated but implicit is its decision not to direct the Corrections commissioner to remand the defendants in the interim. If the early releases were invalid, what are the five men doing out of jail? Daniel Richman, who chairs LCRC, deals with this question artfully:

"This commission would not make a decision, per se, to reincarcerate anyone. This commission would make a decision that previous actions by this commission were in error and invalid. At that point, the commissioner of corrections would have actions he would need to take to deal with individuals who were out on the street without legal authorization."

What part of maybe don't you understand?

Does that mean it is now up to Correction Commissioner Martin Horn to round up the rascals?  Not really, because although LCRC has received the Corporation Counsel's opinion that the releases were invalid, it has not yet adopted that finding and directed Commissioner Horn to seize the defendants. The commission simply gave the five a fresh chance to apply for early release.
 
The ex-inmates and their lawyers may well claim that the original releases were valid, so there is no reason for them to apply again, and that even if the releases were invalid, they were believed to be valid at the time they were issued, and it is now too late for the commission to recant. We look forward to continued legal skirmishing, which could go on for the remainder of their one-year sentences. Meanwhile, the five enjoy the comforts of home and continue to transact their businesses, whatever they may be.
 
If LCRC on Nov. 8 found the releases to be invalid, why did they not request the Department of Correction to take the five men into custody? Is it because they lacked confidence in their own decision? Did they decide to postpone their decision?  Or did they simply receive the Corporation Counsel's letter? The Department of Investigation (scroll down to November 4 for the report, exhibits and appendixes) hedged on the issue of the legality of the releases: after collecting the facts and reciting them, DOI simply stated that "appropriate legal analysis and action be taken" with regard to whether the releases were invalid. The Corporation Counsel wrote to LCRC on Nov. 4, stating that the releases were invalid. Can LCRC decide the matter, contrary to the Corporation Counsel's view? Or can it ostensibly accede to the Corporation Counsel, and simply fail to implement its ruling?
 
Scandal buffs look forward to further developments. It appears that there has been some backing and filling on the part of city agencies. Mayor Bloomberg has said publicly that he thinks Velella was freed wrongly, but sent mixed signals as to whether he should go back to jail:

"I didn't think he should have been released to begin with. I think that elected officials should certainly not be treated better than anybody else... If they do go back, I assume they [the defendants] could re-apply at some point in the future, but I don't want to prejudice what they [presumably, LCRC] have done or are doing."

When we called LCRC to find out precisely what the commission had done Nov. 8, we were told by a spokesman that the LCRC had concluded that the releases were "presumptively invalid," but they had not made a final decision on the matter. We may conclude that this procedure was adopted.  to give the defendants an opportunity to apply for release again, which could strengthen the position of the Commission in the litigation which appears inevitable.  LCRC gave the men another chance.  If they take it, they subject themselves to the board's jurisdiction.  If they do not, they will have declined a good faith opportunity to get legitimately what they received surreptitiously. Asserting the legitimacy of the purported premature, quorumless, conflicted and telephonic releases will place a burden on the defendants' lawyers. But one should never underestimate the prospect of anyone suing the City of New York in a Bronx courtroom.

Sen. Velella's lawyer, Charles Stillman, paid in part by Velella's Senate colleagues' campaign funds, is highly regarded. We may now find out how many friends and sympathizers Velella retains in the judiciary. We suspect the former senator will not stand alone and abandoned before the court. Although the principle of 'equal justice under law,' engraved on the United States Supreme Court building, may not be helpful to him, we think the odds of escaping a return to durance vile are close, with the senator and his confederates' chances competitive with the honorable, well-intentioned quintet who will, at least initially, decide on reincarceration (but not reincarnation).

The five dailies reported the LCRC decision as a major step towards Senator Velella's return to Rikers Island. Newsday declared it as "the first step in returning him to jail," the Post asserted the senator "may be back [in jail] by Xmas," and the News declared that "now he really has a reason to cry." The editorials in the News, Post and Newsday are also linked below.

• News: "Start packing, Guy," editorial (scroll down to third editorial), 11/9, p38; "Guy might hafta cry up the river," by David Saltonstall, 11/9, p4

• Post: "Glum Guy Gathers Lawyers as Jail Looms," by Stephanie Gaskell and Dan Kadison, 11/10, p4; "Why is Velella still Free?" editorial, 11/9, p28; "Velella closer to jail; May be back by Xmas," by David Seifman, 11/9, p3

• Times: "Freeing Ex-Senator Violated the Law, City Panel Is Told," by Jennifer Steinhauer, 11/9, pA1, B8

• Newsday: "Back to Rikers," editorial (scroll down to second editorial), 11/10; "Early Release Controversy: Return Trip to Rikers?" by Glenn Thrush and Dan Janison, 11/9, pA5

• Sun: Commission Says Velella's Release Was Illegal," by Timothy Williams (Associated Press), 11/9, p4

• The Economist (London): "Who let that man out?" November 2004

POSTSCRIPT AND INVITATION: We have just learned through the Internet of the conviction of Scott Peterson in California for the murder of his pregnant wife and their unborn son. This result, achieved after the jury was long divided, may make many people feel better about our system of justice. If you are so inclined, let us know what you think about the case, and we will post your views on our website.