By Henry J. Stern
September 27, 2005

This article begins with a story which I tell periodically.  It made a strong impression on me when it happened (I was nine or ten years old).  It is still embedded in my conscious mind, and this is a good time to tell it, because it leads to other examples of the enormous gap that still exists in areas between what is legally permitted and what happens in the real world we inhabit.
 
In the 1940's, when I was a little boy and most of you were yet unborn, my father used to come home from work each evening on the IRT to our apartment on Post Avenue in Inwood, the upper Manhattan neighborhood, not the five towns Inwood in Nassau.  When he came home he carried under his arm a copy of the World-Telegram (that was before it swallowed the old Sun in 1950).  He thought that Hearst's Journal-American, which splashed red ink in its front page headlines, was too conservative and sensational at the same time.  The Post was a tabloid, and the ink came off on your hands and on your suit. The World-Telegram was the sensible, businessman's newspaper.
 
I eagerly awaited my father's arrival home, not only to see him, but to read the newspaper he brought.  The paper was full-sized and I was small, so I spread it out on the living room floor to read.  In the apartment where my two brothers, my sister and I were raised, the living room was also a bedroom but no one went to bed that early, so it was all right to read there.  I remember the Telegram's front page banner headline in 1950 reporting that George Bernard Shaw had died at 94, which seemed to me to be a remarkable age.  In 2005, he is regarded by many as an historic literary figure (he was born in 1856, nine years before Rudyard Kipling).
 
A subject I read about frequently was a man named Frank Costello, who lived at the Majestic apartment house, an art-deco twin towered building at 115 Central Park West (at 72nd street, just south of the Dakota).  Costello was reputed to be a very important figure in organized crime, but he was usually referred to in the Telegram as "The Prime Minister of the Underworld."
 
That phrase really caught my attention.  I had read a lot about the Prime Minister of Great Britain, our wartime ally.  He was Winston Churchill, who was, then as now, very highly regarded.  Prime minister was a significant public office.  The question that came to my young and relatively unsophisticated mind was: "If Frank Costello is prime minister of the underworld, and the World-Telegram knows about it and prints it in the paper, why don't the police know about it, and, if they do know, why isn't Costello arrested and sent to prison?"
 
I asked my father to answer the question, and he said that it was complicated.  A few years later I went to law school, still hoping to find the answer.  What I learned, among other valuable things, is that just because a man is a criminal, that doesn't mean that he can be arrested and prosecuted unless there is proof beyond a reasonable doubt that he has committed a particular crime.

And serious criminals can hire fine lawyers who can instill the doubt that prevents conviction.  (See People v. Simpson, a California case.)  Jerks who blunder into crimes usually do not have the quality of representation that professional criminals or members of organized crime can afford.  That's the way it is under our rules of engagement.
 
Later, when I was starting out in city government, I worked for two Borough President of Manhattan, under two distinguished people, the late Edward R. Dudley, who was appointed by President Truman as this country's first black ambassador (he was sent to Liberia in 1949) and later became a justice of the Supreme Court of the State of New York.  When he became a judge, he was succeeded by, and Constance Baker Motley, who was appointed a Federal judge by President Johnson in 1966, and later became chief judge by virtue of seniority.  I would attend Community Board meetings most weekday evenings, and during the day I would see what I could do to address people's complaints about city services.
 
A frequent complaint was on-street prostitution.  Local residents said that prostitution was open and notorious, they named the blocks where, they said, it went on every night.  They had complained to the police, but apart from an occasional roundup, there was no change in the condition.  The block that generated the most complaints was East 30th Street, between Park Avenue South and Lexington Avenue.  The south side of the street was lined with town houses with stoops and ground-floor entrances.  The ladies of the night (some of them were what are now called she-males) would wait in the entranceways.
 
When the Johns came by, driving east, many straight from the Lincoln Tunnel, the women would wait for a car to stop, jump in and service the driver.  In this line of work there was no discrimination against B and T people, (a putdown describing those who did not live in Manhattan, but entered it by bridge or tunnel).  In fact, they represented a good part of the trade.  As the block gentrified, and the below-ground areas were fenced off, the problem receded.  This was over 40 years ago, and I do not know how it is today.  But if they have left East 30th Street, there are other areas in Chelsea and Clinton, near the tunnel entrances, where they work.  The world's oldest profession is still being widely practiced, look at the ads in the weeklies.  But with the aid of first the telephone and now the internet, much of it has moved indoors.
 
When there was extensive street solicitation by prostitutes, the frequent objects of citizen complaints were police officers, who often walked past these women and did not disturb them in any way.  It was assumed that the officers were being paid off not to interfere, either by receiving cash or relying on an exchange of services.  That was the case for many years; the Tenderloin district on Manhattan's West Side was reputedly named for the rich picking for police brass.
 
In recent years, however, the problem has centered less on corruption (at least in New York City) and more on what police officers are allowed to do.  Today, simply observing a person who is obviously a prostitute (by her dress, by her location, by her manner, by the time of day or night) cannot be arrested, or even forced to move, because the police officer has not witnessed a crime being committed.  With today's standards of political correctness, police action against such a person would be objected to as "prostitute profiling".  Anti-loitering statutes have been struck down by the courts as vague.  They are certainly not precise, but how else can a city prevent prostitutes (sex workers, in today's lingo) from standing on street corners to solicit passersby and driversby.  

How can a police officer justify acting against a particular individual?  Is he or she judging by gender, apparel or ethnicity?  Young lawyers from the finest firms fight such arrests, under the rubric of pro-bono activity.  Today, in many cases, pro bono means anti-government. 
 
The presumption here is that whatever the state or the city tries to do is assumed to be wrong, and that in any conflict between the state and the individual, the individual defendant is likely to be a victim of state power, and because he/she is unable in many cases to afford counsel, the pro bono lawyers are there to counter the assistant district attorneys and United States attorneys who represent the Orwellian state.  Sometimes, individuals are in the right, and sometimes they are in the wrong, but, to many lawyers, that makes very little difference, the worse an individual's behavior, the greater his need for quality representation. The worse the horse, the greater triumph for the jockey when he wins.  In any event, lawyers serve clients, usually rich but occasionally poor.
 
The law itself imposes limits on police activity, and such laws have some justification.  We do not want random stops of innocent people, particularly when they are race-based.  We do not want citizens, or non-citizens, driven out of a neighborhood because of their appearance, their poverty or their lack of housing, clothes or food.  But when a reasonable officer believes (and pictures can be taken to support that conclusion) that a person is in a particular place for the purpose of committing a crime, it seems foolish that the officer must wait for the crime to be committed before taking action.  Besides, crimes involving consent usually occur in private, not public places, where people can be observed in the act.
 
The street prostitution situation is a microcosm of the Costello problem.  Yes, nearly everyone knew that Frank Costello was an important gangster, but he was beyond the power of the law.  Vincent (The Chin) Gigante shot him in front of the Majestic in 1957.  Gigante was the man who would later wander the streets of Greenwich Village in a bathrobe to show he was unfit for trial.  At his moment in history, his hand was unsteady, and the bullet merely grazed the leader's head.  Costello saw nothing and had no idea why anyone would want to kill him.  He died of natural causes in 1973.
 
We must note that, in recent years, the Justice Department has had enormous success in organized crime cases, and that most of today's Costellos are in jail for long terms.  This is a great achievement which has not received the credit it deserves, in part because of the fact that in popular culture criminals are romanticized (Bonnie and Clyde, Frankie and Johnny, Scarface, Jesse James, etc.) and because the luster of the Federal Bureau of Investigation has been dimmed by stories about J. Edgar Hoover and L. Patrick Gray (who destroyed Watergate documents and was left to 'twist in the wind).  Then there was 9/11, where the Bureau ignored specific warnings from its own agents about Arabs taking flying lessons in the United States.
 
Law enforcement today suffers from serious impediments, some the result of state legislative action or inaction.  For example, the New York State Assembly, under the leadership of you know who, refuses to allow DNA testing of criminals in many cases.  As a compromise in 2005, some testing was allowed.  But the identifying technology, which protects the innocent as it convicts the guilty, is opposed by the criminal defense bar, who fight tooth and nail against scientific means of identifying their clients beyond doubt.  In Albany, criminal lawyers have almost as much influence as personal injury lawyers.  We wonder why.
 
There is much more to be written about the chasm between what people know to be true, and the results that can be obtained through our present legal system. We are mindful of the fact that there are conflicting values and interests here, and that most Americans do not want to live in a police state.  But they don't want to live in a state where they are at the mercy of criminals who are protected by laws written by their attorneys.
 
We invite readers, particularly those who have had experience in this area, either as lawyers or as victims, to suggest what can be done, consistent with reasonable rights for individuals, to bridge the gap between reality and results in the criminal justice system.  This is another area where most of the scholarship is on the side of the defense, which suggests to us that knowledge and intellect do not necessarily correlate with judgment and wisdom.  That is an issue being raised in the confirmation hearings for Judge Roberts, who is clearly brighter than his questioners.  We only note here that the issue cuts both ways -- if you get the drift.

#255  9.27.05  2138wds