Governor Catches a Break,
Cuomo Names Judge Kaye
As Independent Prosecutor
By Henry J. Stern
March 12, 2010
Governor Paterson has at least temporarily escaped from the drumbeat of criticism and demands for his resignation that followed his intrusion in a domestic violence case and his efforts to cadge World Series tickets. The newspaper accounts of the alleged victim's January purchase of a new Lexus for $40,000 have disappeared, at least for now. A witness is reported to deny the story that the governor either threatened or bribed the complainant, either of which would be a crime.
Other stories on State government issues, the Ravitch report which recommends billions of dollars in additional state borrowing in exchange for limiting future appropriations through a financial control board, and the guilty plea by David Loglisci, chief investment officer of the New York State Comptroller's office under former Comptroller Alan G. Hevesi (which tightens the prosecutorial noose around Hevesi's neck), have taken the place of the gubernatorial death watch, now indefinitely deferred.
Yesterday, Attorney General Cuomo, who undertook the investigation Feb. 24 at Governor Paterson's telephoned request, announced that he was recusing himself from the case and appointing retired Chief Judge Judith Kaye to take over the inquiry. Danny Hakim reported the switch in today's Times:
"Facing growing political pressure, Attorney General Andrew M. Cuomo on Thursday appointed an independent counsel to take over his office's investigation into the Paterson administration's response to a domestic violence case. Mr. Cuomo said Judith S. Kaye, the former Chief Judge of New York, would lead the inquiry, along with an investigation into whether the governor lied when he was questioned by the State Commission on Public Integrity about his office's solicitation of World Series tickets.
"The development came as a surprise; Mr. Cuomo had previously expressed no public reservations about taking on the sensitive cases, even as he prepared to announce his candidacy for governor, and his staff had spent the past two weeks investigating the domestic violence case.
"But in recent days, the political complications for Mr. Cuomo became more apparent. The cases are likely to drag on for weeks if not months, potentially colliding with the start of Mr. Cuomo's campaign for governor, which is expected to begin next month.
"In addition, some African-American leaders and newspaper editorials had urged him to step aside, given his political ambitions and the delicate decisions he could confront leading the investigations."
What happened here is that, in response to Paterson's request, Cuomo initiated the investigation and his staff worked on it for several weeks. They discovered what they believed was inappropriate behavior by the governor, but they had not yet come to a conclusion as to what do about it, and there were further potential witnesses who could be requested or subpoenaed to testify. Whether the governor's phone call to the victim and the unsolicited contacts with the State Police rose to the level of criminality was a judgment call, and whatever decision was made would be subject to criticism. This is particularly true because of the racial aspect of the case, and because by the time the decision was made, the Attorney General was likely to be a candidate for governor, and whatever he did would be seen through a political prism. Also, Cuomo's poll number started falling, not because of anything he did wrong, but because he had become involved in an unpleasant controversy. The bottom line is that you cannot be a competitor and a prosecutor in the same game; people don’t think it is fair.
The choice of Judge Kaye also raises issues which are inevitable when judges enter the political thicket, no matter how gingerly. First, she was appointed to the Court of Appeals in 1983 and made Chief Judge in 1993, both by Governor Mario M. Cuomo, a party related to the current Attorney General. Second, she was retained by the Working Families Party in November 2009, when the WFP was under fire for intricate financial transactions with paper subsidiaries which may have been used to evade campaign finance laws. Third, as a relentlessly progressive and merciful judge, she is not likely to find too much fault with Governor Paterson. She could be considered the polar opposite of Ken Starr, and although we would not want Mr. Starr (who is now president of Baylor University in Waco, Texas) to rule in this case, there must be respected attorneys with prosecutorial experience who would be willing to serve. On the other hand, Judge Kaye is widely regarded as honorable, and the fact that she is a woman may give her some sympathy for the complainant who was first beaten up by D.J. and then harassed by the State Police, before the governor personally assured her that he would support her, the day before she failed to show up in court, at which time the charges were dropped.
As far as the World Series allegations are concerned, they are relatively penny-ante. The Yankees should invite the governor to the World Series out of courtesy, and if codes of ethics prohibit that, they should be modified to conform to common sense. If the tickets cost $50 or thereabouts, it would be reasonable for the governor to pay for them himself to make a point, but to pay $850 for two seats is an unreasonable burden. It would look foolish for the governor to have to sit in the upper deck because of the price the Yankees charge for series tickets. The Parks Department is the city agency responsible for the stadia, and when I was commissioner (for 15 years), we always received free Series tickets, as did elected officials from the area who were guests of George Steinbrenner. I recall the lyrics in Nathan Detroit's plea, sung by Frank Sinatra in the movie version of Guys and Dolls (1955): "Sue me, sue me, shoot bullets through me."
The governor was foolish to submit a check D.J. signed for him with a backdated signature, and even more so if he did not tell the truth about it. But if the lie is about his intention to pay, that is a very weak case for perjury. Who knows his state of mind? He probably intended to pay for the ticket if he was dunned for the money. In any event, it became an issue. The Yankees should have asked him to be their guest. It is likely that there were other invited guests on opening night of the World Series. I know it is easier to draw up and enforce a total ban, rather than trying to specify occasions and individuals where freebies are acceptable. But I do think that if the people have elected someone as governor (or LG, in his case), they do not really expect him to pay admission for every event he attends -- what about fund raising dinners, for example? At any rate, this is a reasonable use of campaign funds: intended to help the governor politically by presenting him at large public occasions, even if he is widely booed.
These side shows distract public attention from the budget abyss the state continues to face as time proceeds and the treasury empties. We suspect that the governor and legislators are so far behind schedule that they will not be able to make meaningful decisions by March 31, the date required by law for the adoption of the spending plan for next year. For nineteen years out of the last 23 the state has failed to meet that deadline. The earth will not shatter (hopefully, not in New York) if the deadline is missed again.
What is particularly lamentable is the snail's pace at which work is being done. With the Senate hopelessly divided, with neither party having the votes to pass anything, at least until the Monserrate vacancy is filled, it is highly unlikely that a majority can be assembled to make difficult decisions on the budget or any other subject. The longer the delay, the less money will be left in the coffers, and the deeper the cuts will have to be.
Unless the Ravitch plan postpones the day of reckoning to 2011.
La commedia non e finita.
StarQuest #654 03.12.2010 1350wds |