The Answers You Are Looking for This November

Today's Rochester Democrat and Chronicle features an excellent article by Gary Craig on the District Attorney's race.

Craig sets up three salient questions that the voters should seriously consider before going into the voting both and making what may amount to be the only important county-wide decision to be made this November:

1. Has turnover hindered the office's effectiveness?

2. Are trials being lost that should have been won or resolved with a plea bargain?

3. Can the policies of a district attorney's office be a crucial crime-fighting tool for a community?

Presumably, Craig then allowed Mike Green the ability to answer these three questions. What were Mike Green's answers to these questions?

QUESTION 1 - Has turnover hindered the office's effectiveness?

Mike Green's Answer: "Green said pay freezes during three of the past five years made it tough to keep prosecutors and to recruit new ones. Now, he said, even some public-sector lawyer positions can match or better the pay for assistant district attorneys. Salaries start just under $52,000 for assistant district attorneys."

It seems to me that this sounds like a (highly) qualified "yes." He cannot keep prosecutors or recruit new ones? His predecessor, Howard Relin never had that problem.

QUESTION 2 - Are trials being lost that should have been won or resolved with a plea bargain?

Mike Green's Answer: "According to Green, the office has prosecuted 37 homicides this year: 18 ended in convictions to the highest criminal charge, 13 to lesser charges and six in acquittals... Many cases are tough because witnesses grow fearful of testifying, he said."

So, if you do the math, you see that there were 37 homicide trials this year and 18 ended in a conviction to the highest criminal charge. Of those 18, you must bear in mind that NOT ALL 18 went to trial. That number (as near as I can tell) includes Defendants who accepted a plea of guilty which includes Leroy "Unique" Robinson, Eugene Rush and Eldred Johnson. So now, do the math and subtract the 3 Defendants (that I could find) who were convicted upon a plea from the 18 total convictions and you are left with 15 (or less) Defendants who went to trial this year and were convicted of the highest criminal charge. 15 divided by 37 is 40 percent. Mike Green is winning 40 percent of the time. I want to ask you this simple question, If Jack McCoy only won 40 percent of the time, would Law and Order have been on television for 18 years? The 40 percent number also lines up with the number of convictions of the highest count of a felony from the Public Defender's Office. Do we want a District Attorney who loses 60 percent of the time?

QUESTION 3 - Can the policies of a district attorney's office be a crucial crime-fighting tool for a community?

Mike Green's answer: "With Green's policy, more cases are likely to go to trial because prosecutors refuse to plea bargain. And, if convicted, felons are likely to face stiffer sentences than they would have received with a plea, helping inflate the prison sentences, as the RIT research shows.

The Klofas research shows that the policies are succeeding, Green said. According to the June study, more felonies are being prosecuted as felonies. Since 2003, there has been a 90 percent increase in the likelihood that a person committing a firearm-connected crime will serve state prison time, the study found.

The current research — some of the past RIT research was funded by the DA's office — also showed that there have been "minor reductions in the percentage of cases ending in conviction and in increases in the time it takes to close cases."

This amounts to nothing more than "body count justice." Moreover, there should be some significant concern in that although there has been a 90 percent increase in the likelihood that a person committing a firearm-connected crime will serve state prison, there has been no corresponding reduction in the amount of violent crime the community has suffered. It is body count justice because it focuses on raw statistical outcomes rather than real, identifiable results. And, most significantly, it is body count justice because it results in the same outcome for all criminals regardless of the facts of the case and the circumstances of the defendant.

When one examines WHO is committing these felonies in which Mike Green is taking a hard stance, it is almost exclusively black and latino defendants. Justice in this case is not color-blind as the majority of people Mike Green sends to state prison are young black males and some black males who have never been arrested before.

Tell me, in what universe is it just to send a black male to state prison who was caught carrying a gun and confesses to carrying a gun saying "my friend was just shot and killed a month ago and I was afraid the guys who did it were coming to kill me," while a rich, white doctor (Doctor Farchione) who confesses to abusing his position of authority and trust repeatedly by molesting little girls and gets probation? How does this serve our community?

I hope Gary Craig gives Mike Green another chance to answer these 3 questions because, as I see it, his answers do not warrant a second term in office.

Mike Green, the Crimefighter Cries "Uncle"

On October 5, 2007, the Rochester Police Department implemented a "zero tolerance" policy on crime went into effect after a violent week in Rochester that included two murders that have outraged the city.

Casey Bortnick of R-News reports that:

In the 20 days of the program, police have been working 12-hour shifts and aggressively patrolling the streets. The RPD reports 254 violations, 333 misdemeanors, and 67 felonies. Eleven people have been arrested for gun violations. Nearly 60 weapons have been taken off the streets. Police have also seized large amounts of drugs.

On Mike Green's website, Mike Green states that "Under his leadership, the office is combating violent crime and homicides by targeting armed violent felons, drug dealers, and those illegally carrying guns."

Curiously, Mike Green told Casey Bortnick of R-News "It doesn't do any good to go out and make arrests if we don't have the resources to prosecute them."

Huh? The Rochester Police Department is turning in 12 hour shifts and making the types of arrests Mike Green deems most important, those being armed violent felonies, drug dealers and illegal guns and, instead of relishing the challenge, Mike Green says the unthinkable - THAT HE IS INCAPABLE OF PROSECUTING THESE CASES.

That's right, Mike Green, the crime fighter that the Rochester Democrat and Chronicle endorsed
as "a tough, no-holds-barred prosecutor" has cried "UNCLE!"

The truth is that Mike Green was having a difficult time prosecuting homicides and violent felonies BEFORE zero tolerance. See for yourself at the New York Division of Criminal Justice:

2006 Violent Felony Conviction Rate of Non-New York City Counties

County 2006 Conviction Rate

1. Schuyler 100%

2. Hamilton 100%

3. Herkimer 97.0%

4. Washington 96.4%

5. Livingston 94.7%

6. Ontario 94.2%

7. Chenango 92.3%

8. Delaware 91.5%

9. Lewis 90.5%

10. Chautauqua 90.0%

11. Schoharie 88.9%

12. Wyoming 88.5%

13. Greene 88.0%

14. Yates 87.5%

15. Nassau (Long Island) 87.4%

16. Columbia 87.2%

17. Saratoga 86.9%

18. Allegany 86.8%

19. Warren 86.7%

20. Fulton 86.5%

21. Seneca 86.4%

22. Oneida 85.7%

23. Oswego 84.6%

24. Montgomery 84.1%

25. Jefferson 83.9%

26. Cattaraugus 83.2%

27. Steuben 82.4%

28. Rensselaer 82.0%

29. Madison 81.7%

30. Chemung 81.7%

31. Tioga 81.6%

32. Orleans 81.4%

33. Sullivan 81.1%

34. Rockland 81.1%

35. Clinton 80.7%

36. Otsego 80.6%

37. Dutchess (Poughkeepsie) 80.4%

38. Putnam 80.3%

39. Essex 80.0%

40. Schenectady 79.0%

41. Broome (Binghamton) 78.0%

42. Genesee 77.6%

43. Albany (Albany) 77.0%

44. Orange 76.9%

45. Franklin 76.2%

46. Cortland 75.9%

47. St. Lawrence 75.7%

48. Wayne 75.4%

49. Suffolk 75.0%

50. Cayuga 75.0%

51. Tompkins 71.8%

52. Westchester (Yonkers) 70.4%

53. Onondaga (Syracuse) 69.4%

54. Monroe County 69.1%

55. Ulster 66.9%

56. Niagara 62.8%

57. Erie (Buffalo) 58.8%

58. Richmond 52.3%

Anyone else alarmed?

The Democrat and Chronicle Endorses Mike Green for District Attorney

In the editorial page of the Democrat and Chronicle on October 22, 2007, the paper endorsed Mike Green for District Attorney.

You say Mike Green should remain the County's Chief Crime Fighter for the next 4 years? Why?

You say "The DA office's conviction rate is solid?" Let's recount Mike Green's year in 2007.

Kevin Lipford - Acquitted of Murder
Keon Anderson - Acquitted of Murder
Samuel Haile - Acquitted of Murder
Brian Smith - Acquitted of Murder
Brandon Daymon - Acquitted of Murder
James Stanford - Acquitted of Murder
Rosa Resto - Acquitted of Murder
Joshua Rivera - Acquitted of Murder
Charlie Scott - Acquitted of Murder
Frantina Smith - Acquitted of Manslaughter
Karen Greene - Acquitted of Vehicular Manslaughter
James Telban - Acquitted of Vehicular Manslaughter
Vincent Bermudez - Acquitted of Murder
Pierre Harris - Acquitted of Murder
Chazaray Green - Acquitted of Murder
Earl Nesmith - Acquitted of Murder

It is hard to say that this was a "solid" year for Mike Green.

You say "the management concerns are significant." I would say so when you consider that 48 DAs have left the office since he became District Attorney and of which 15 of those DAs have left since January 1, 2007. That's 15 DAs in 10 months. How can you possibly minimize the discontent of that office when more than one prosecutor a month leaves the office?

You say that "too much staff dissension can lead to losses in the courtroom." The above list is just a partial list and only represents 30 minutes of time researching homicide acquittals at the public library. That does not even take into account all other trial results. Ask yourself this simple question, if homicide prosecutions are supposed to be so important and yet there were so many acquittals, imagine his record on other crimes? Perhaps 15 prosecutors leaving the office this year may have something to do with it.

How can you turn a blind eye to hard facts in favor of an amorphous "tough on crime" claim? You can't just say you are "tough on crime," you have to be tough on crime and it is hard to be tough on crime when all of your back up (your prosecutors) are bolting for the door. How can you say Green is tough on crime when 13 people were acquitted of homicide charges?

You ask how Cara Briggs "would run the office, how she would deal with gun offenses and violent crime differently from Green?" The fact that you are choosing to not listen to her message does not mean she is not trying to get her message out. Read her campaign literature, review her newspaper and television interviews or, as a concerned voter here's a novel concept, ASK HER.

Let me close by asking you this difficult question, can you say that Mike Green's handling of the office, an office in which 48 prosecutors have left in his 45 months of office and his handling of violent crimes in which there have been 15 homicide acquittals this year REALLY entitle him to another 4 years in office? Please, the readers and the voters need an answer...

Mike Green Tackles Prosecutor Attrition

In response to the criticism of the high turnover rate in his office, Mr. Green stated to Cristina Domingues of R-News "the public does not care who prosecutes the cases as long as we win."

This statement is more telling than it may first appear.

It must be remembered that Mr. Green is a political animal and is completely beholden to what the "public" believes. This is evidenced by the fact that back in 2003, when former District Attorney Howard Relin announced he would not seek re-election, Mr. Green (a lifelong republican married to a lifelong republican) jumped to the democrats to obtain the nomination for the Office of District Attorney.

When Mr. Green says "the public does not care who prosecutes the cases as long as we win," what he is REALLY saying is that "HE does not care who prosecutes the cases." It isn't rocket science and does not take a rocket scientist to understand that there would be a high rate of attrition when your boss is of the opinion that all of his employees are expendable.

When Cara Briggs points out the fact that 85 prosecutors have left the District Attorney's Office since 2001 when Mr. Green became First Assistant, Mr. Green can only counter by saying that the proper starting point of analysis should be the number that have left since he began his tenure as the District Attorney.

Okay. Mr. Green became District Attorney in January 2004. At that time, he oversaw an office which employed 70 prosecutors. As of todays date, Mr. Green has been District Attorney for 45 months. In those 45 months, 48 prosecutors have left the office. Yes, you read that right - 48 prosecutors. Or, put another way FOR EVERY MONTH Mr. Green HAS BEEN DISTRICT ATTORNEY, AT LEAST ONE PROSECUTOR HAS LEFT THE OFFICE. Yes, during his tenure, an astonishing 69% of his prosecutors have left the office.

Mr. Green states that this high attrition rate (which he appears not to be concerned about) has nothing to do with his felony conviction rate of 91 percent. When one discussed statistics, one should always be cognizant of the words of former British Prime Minister Benjamin Disraeli, “There are three kinds of lies: lies, damned lies, and statistics.”

With respect to prosecutor attrition, the statistic that would be most telling would be the conviction rate after trial of the most serious charge. This statistic is actually the most telling indicator of the quality of prosecutor still in the DA's Office as it indicates the quality of the prosecutor in conducting a trial and obtaining a conviction on the most serious charge. That number is going to be somewhere in the 30 percent range. If that is the case, what that number tells us is that either (a) Mr. Green is significantly over-indicting cases and/or (b) there is a lack of skill and experience in the prosecutors trying those cases.

If Mr. Green is correct in saying "the public does not care who prosecutes the cases as long as we win," THEN THE PUBLIC SHOULD RE-EVALUATE THIS POSITION.

Mike Green Takes Credit For Warney's Exoneration

If you are looking for a whale of a "fish story" you should have Mr. Green tell you how he and his office were solely responsible for the exoneration of Douglas Warney who was wrongfully convicted of Murder 1st - a murder he did not commit:

"An investigation initiated by District Attorney Michael C. Green and led by the Second Assistant District Attorney Larry K. Bernstein, Chief of the Appeals Bureau, Wendy Lehmann, and Investigator Robert Siersma of the District Attorney’s Office, and Investigator Thomas Donovan of the Rochester Police Department resulted in the conviction of Eldred Johnson, Jr. based on DNA evidence and a confession. As a result of the evidence uncovered by our investigation, the People did not oppose an application on behalf of Douglas Warney to vacate his conviction and the dismissal of the indictment against Mr. Warney. Mr. Warney was released from state prison, where he had been incarcerated since his conviction in 1997." - MONROE COUNTY DISTRICT ATTORNEY'S OFFICE ANNUAL REPORT 2006.

This whale of a story completely ignores the fact that Warney's exoneration came after years of tireless work by The Innocence Project and after Green's continued opposition to the re-testing of the DNA evidence that could exonerate Warney by using more sophisticated DNA testing.

Why was Green so obstinate you ask? Well, the answer is easily found. The quality of the case against Warney was recognized even prior to his indictment in 1996 by NY Times writer Bob Herbert:

"Prosecutors tend to salivate over the benefits, political and otherwise, of sending someone to the great beyond. Lethal injections, hangings, firing squads, whatever. Death penalty cases excite them. They know that three-fourths of all poll respondents favor capital punishment and that the population is programmed to applaud killing in the name of justice. A successful capital prosecution can make a prosecutor feel powerful, popular and righteous all at the same time.

But there are problems with the case against Mr. Warney, who, three weeks after his arrest, still has not been indicted. The closer one looks at the case, the more it appears that Douglas Warney did not kill William Beason.

Mr. Warney, 34, is a pathetic individual. He is retarded, delusional, suicidal and in the last stages of AIDS. He has signed a confession but his lawyer, Thomas H. Dunn of the Capital Defenders Office, noted that Mr. Warney "is suffering from AIDS-related dementia." Someone seeking the facts in this case, and not just a notch in a prosecutor's belt, might see that as one reason why much of Mr. Warney's confession is so out of touch with reality.

Example: Mr. Warney said in his confession that he stabbed Mr. Beason many times and "even sliced his throat to make sure" during a struggle in Mr. Beason's kitchen. It turns out that despite the fury of this alleged attack no blood was found in the kitchen. Investigators believe Mr. Beason was murdered while in his bed.

Example: Mr. Warney said he cut his finger during the attack, but a medical examination shortly after his arrest showed no evidence of a cut. Blood was found at the scene that did not match the blood of the victim, but tests have excluded Mr. Warney as the source of that blood.

Example: Mr. Warney said he drove his brother David's brown Chevrolet to Mr. Beason's house and returned it to his brother's residence after the murder. According to Mr. Dunn, David Warney does not own an operable car. He once owned a brown Chevrolet, but it hasn't been registered to him since 1990. No brown Chevrolet has been found.

Example: Mr. Warney said he disposed of his own bloody clothes in a pail outside his apartment. The Rochester Police Department, according to Mr. Dunn, never tried to locate the clothes. Investigators for the Capital Defenders Office conducted a videotaped search of the area in the vicinity of the apartment (there had been no trash pickup in the intervening period), but no clothes were found.

Example: Mr. Warney said that on the day of the murder he shoveled snow at Mr. Beason's residence. "I went outside," the confession states, "and shoveled his driveway." A neighbor of Mr. Beason's who was home all day said no one shoveled Mr. Beason's driveway.

Mr. Warney's confession appears to be the rantings of a man who has only a passing acquaintance with reality. In court hearings thus far, the District Attorney of Monroe County, Howard Relin, has offered no physical evidence linking Mr. Warney to the crime."

- Bob Herbert, "In America; Prosecutor's Prize," NEW YORK TIMES, January 29, 1996.

The fact that our community swallowed this "fish story" hook, line and sinker is sad.

Monroe County District Attorney Election

As part of her campaign for the office of District Attorney, Cara Briggs is promising to bring teamwork and accountability.

Mike Green's idea of teamwork and accountability is amply depicted in the case of Edward Rodriguez, the confessed murderer who is now free. When Mr. Green was questioned about the technicality which resulted in Mr. Rodriguez' freedom, Mr. Green responded that when Rodriguez was indicted he was not yet the District Attorney. This answer ignores the fact that at the time Rodriguez was indicted, he was the First Assistant District Attorney responsible for overseeing homicide investigations and prosecutions (READ: "blame Howard Relin").

Then once the case progressed to trial and it became apparent that there were legal difficulties in proceeding to trial on both intentional and depraved indifference murder, Mr. Green refused to rely on his team of experienced prosecutors who told him of the legal issues that could arise if Rodriguez was convicted of depraved indifference murder based on evidence of intentional murder. Mr. Green's response was that it was the Grand Jury who indicted Rodriguez (read: blame the Grand Jury). This answer ignores the fact that it is the role of the District Attorney to advise the grand jury. It also ignores the fact that the District Attorney has the duty and obligation to secure convictions on proper legal charges.

And there you have it - Mike Green's idea of accountability is to blame everyone else and his idea of teamwork is to ignore the advice of his "highly experienced" senior staff. What is the point of having a "highly experienced" senior staff when their opinion and input counts for nothing?

After this murderer went free, Mr. Green was quoted as saying that he was investigating filing further charges against Rodriguez. My question to Green is this: what charges will you be filing?

Bring back accountability and teamwork to the Office of the District Attorney and vote for Cara Briggs for District Attorney.