David Warney Attempts to Speak Out Against Mike Green

I was downtown today and saw that David Warney was speaking with a reporter from 10NBC. The subject of Warney's interview was his rebuttal of Mike Green's claims that it was solely through his efforts that Douglas Warney was exonerated. For some reason, it does not appear that 10NBC will air his interview. I have managed to obtain a copy of David Warney's statement and will post it here.

I am the brother of the man released after serving
10-1/2 years in prison for a murder he did NOT commit.
Mike Green is having the public believe he is
responsible for ordering the re-testing of the DNA,
and this is a bold face lie! the ordering was done
because of a recent decision handed down in the NY
Court of Appeals on a case from Rochester. My
insistence, as well as that of the Innocence Project,
is what got my brother freed, and NOT Mike Green. He
deserves NO credit for my brother's release, and he
deserves NO 2nd term in the DA's Office. He conspired
with others in the DA's Office to block the
re-testing, and he withheld this from defense counsel;
he even was heard saying with a colleague: "it really
doesn't matter, because he has AIDS, and will probably
die in prison before the results could ever be
found..." this was overheard by myself, as well as
another person who has an interest in this case. Mike
Green is a man for himself, and NOT for the County.
Vote for Cara Briggs...........

David J. Warney

It seems sad that in an alleged free marketplace of ideas the only airing that David Warney will receive is in this lonely blog in the desolation of cyberspace... This is democracy inaction.

Mike Green is Tough on Gun Possession...

On his web page promoting his re-election campaign, incumbent District Attorney 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."

Today I was reading a blog story on Thomas Tacito. For those of you who do not know this story, Tacito pleaded guilty in 1996 to a felony of leaving the scene of an accident and a misdemeanor of driving while intoxicated in the death of Calvin "Shorty" Franklin on Dec. 5, 1995. Franklin was killed while walking on crutches across East Main Street. Although Tacito could have been imprisoned up to three years, he received five years' probation. Then, in 2003 he fired a .380-caliber pistol into the dashboard of a car where his father was sitting, then led police on a high-speed chase while he was intoxicated. He faced felony charges that could have sent him to prison for up to seven years. The felonies included illegal weapons possession and driving while intoxicated because he had a previous drunken-driving conviction within 10 years. Instead of taking his usual "tough stance," Mike Green allowed this guy to plead guilty to 2 misdemeanors with a sentence promise of probation! That's right, the District Attorney's Office dropped the gun possession charges!

What possible justification warranted such a departure, especially given Mike Green's "tough stance" on violent felonies and illegal gun possession? At the time, Green claimed that Tacito did well in treatment when he was released from jail three months after the incident. Given his stated "tough stance" on gun possession cases, is this rationale credible? This convicted felon used an illegal handgun in an attempt to shoot someone and then, while in an intoxicated condition, led police on a high speed chase. In what world would this result be just?

This County has suffered through 4 years of Mike Green's warped sense of justice, let's not suffer 4 more.

Promises: The Ghosts of Elections Past

As we approach this Tuesday's election for District Attorney in Monroe County, let's take a trip back in time and review a few promises made by Mike Green in the 2003 District Attorney race and see how well he has done to keep those promises.

Back in 2003, Gary Craig of the Rochester Democrat and Chronicle asked Mike Green:

What can you do as district attorney to fight crime and lower the homicide rate in the city of Rochester?

Violent offenders must be swiftly and vigorously prosecuted by experienced prosecutors and given substantial sentences to protect the community. I will ensure that the office continues to achieve a high level of success prosecuting homicides. Since a large percentage of violent crime is drug- related, a comprehensive policy is necessary to address both the supply and demand for drugs. I will aggressively attack the supply of drugs in our community, prosecuting and convicting major drug dealers, seeking forfeiture of assets and long prison sentences, publicly sending a message that this community will not tolerate such behavior.

Are violent felons being prosecuted by experienced prosecutors? As previously discussed in a prior post, most of the experience prosecutors have left the District Attorney's Office under Mike Green's reign. In fact, since 2001 when Mike Green became the First Assistant District Attorney, the office has lost 560 years of legal experience.

Has his office continued to achieve a high level of success prosecuting homicides? This year, Mike Green's office had 6 outright homicide acquittals. In no universe can this be considered a "high rate of success." Take a look for yourself:

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

Let's not forget that this list does not include the debacle of Edward Rodriguez, the convicted murderer who is now a free man after his murder conviction was reversed on appeal.

Has he succeeded in sending a message that this community will not tolerate violent felons? According to the Division of Criminal Justice Services ("DCJS") report entitled Crime in New York State: 2006 Final Data there was a 19.6% increase in the number of incidents of violent crime in Monroe County between 2005 and 2006. In fact according to DCJS, in the years 2004-2006, there has been an increase in the number of violent crimes committed in Monroe County each year.

Mike Green preaches holding violent criminals accountable and yet, as the above demonstrates, he has progressively become ineffective in prosecuting those criminals and the incidents of violent felonies has only increased over the past 3 years.

Now it is time for the people of Monroe County to hold him accountable for his broken promises.

Fran Strazzeri Shudders

In the book The Life of Reason the philosopher George Santayana observed that "Those who cannot remember the past are condemned to repeat it."

One of the issues for the 2007 Monroe County District Attorney Election has been prosecutor attrition. As it turns out, prosecutor attrition was also an issue in the 2003 Monroe County District Attorney Election between Mike Green and Ann Marie Taddeo.

In 2003, the Rochester Democrat and Chronicle ran a series of articles profiling the race for District Attorney. One of those articles, "The Race for District Attorney" by Jeffrey Blackwell revealed this nugget of truth:

"If Mike has contributed to the avalanche of people leaving before he becomes (district attorney), I shudder to think what will happen if he becomes (district attorney)," says Francis Strazzeri, a lawyer who entered private practice in 2000 after working under Green.

In an office of 75 prosecutors and at the time Fran Strazzeri was quoted in the paper "34 or 35" prosecutors (according to Mike Green) left the office since he became the First Assistant District Attorney. In the nearly 4 years in which Mike Green has been the District Attorney that number has swelled to 85.

In 2003, Jeffrey Blackwell asked Mike Green why there was so much turnover in the office. Green's response then was:

Green said 34 or 35 prosecutors left the office for a variety of reasons, including a three-year salary freeze and job opportunities in private law firms, judgeships and clerkships.

He denies that the attrition is having an effect on the office's prosecution of cases. But he admits that some lawyers left because of changes he made.

"I'm sure a few people decided to leave the office rather than work under the situation where you have to follow the policies," Green said. "I don't feel bad about that because my job is to make sure the office gets the job done."

In 2007 in response to a story by R-News report Cristina Dominguez, Mike Green had this to say:

"Where we have turnover is at the bottom of the office,” said Green. “The newer attorneys coming out of law school face staggering student loan debts, on average $100,000 - $125,000 of student loans. For three out of five years we've had salary freezes."

And in response to a story to WHEC reporter Nikki Rudd, Mike Green had this to say:

"They've been elected judge. They've gone to the US Attorney's Office. They've gone to high paying jobs in the private sector," explained Green. "Other people have left because they didn't want to do the work or because I asked them to leave."

Sound familiar? The past comes to haunt us again...

In 2003, Mike Green stated that one of the reasons that prosecutors have left the office was a 3 year wage freeze. In 2007, Mike Green states that there has been a wage freeze in three out of the last five years. Now for the crux of this post.

Are Mike Green's explanations for prosecutor attrition plausible? Let's take a look at a table depicting the the experience drain in the DA's Office:

Let's start with Mike Green's fiscal explanation for prosecutor attrition. We will begin by looking at the years 2001-2004 (the years in which a wage freeze had been in effect). Look at the staggering number of experience lost over those three years:

• In 2001, 14 prosecutors left the office taking an average of 7.9 years experience with them
• In 2002, 12 prosecutors left the office taking an average of 8.8 years of experience with them
• In 2003, 11 prosecutors left the office taking an average of 2.7 years of experience with them
• In 2004, 11 prosecutors left the office taking an average of 10.9 years of experience with them.

It is not entirely inconceivable that the wage freeze had something to do with all of these prosecutors leaving.

Now what about the last three years in which prosecutors have enjoyed salary increases?

• In 2005, 12 prosecutors left the office taking 6.7 years of experience with them
• In 2006, 11 prosecutors left the office taking 7.1 years of experience with them
• In 2007, 14 prosecutors left the office taking 3.6 years of experience with them

If wage freezes explain the departures between 2001 and 2004, how does Mike Green explain the fact that the same number of prosecutors have left the office when there was no wage freeze?

Okay, so maybe Mike Green falls back on his other explanation for the years 2005-2007 - that new attorneys have a great deal of student loan debt. The average starting salary for an Assistant District Attorney in Monroe County is about $50,000. It's a good thing Mike Green is not the Chief Prosecutor in Florida where the average starting salary for a prosecutor is $38,000!

What about Mike Green's contention that under his regime as District Attorney, the turnover rate has been "at the bottom of the office?" Well, based upon the table of experience above, it would appear that his claim is somewhat "true." True in that all the people at the "top" left between the years 2001-2004 and all that were left were the people at the "bottom."

No, I do not find Mike Green's explanations plausible. The explanation I find most plausible came from former Assistant District Attorney Robert Kammer in Jeffrey Blackwell's 2003 article:

"My concern was that he seemed to be second-guessing some of the district attorneys. I didn't mind criticism. I didn't mind direction. But I did mind being micromanaged."

After Mike Green's four years of micro mis-management, I cannot believe this County is actually considering electing him for another 4 year term. If Fran Strazzeri shuddered in 2003, I can only imagine how he feels now.

Remember the words of George Santayana and elect Cara Briggs.

Did Mike Green Comply with the Freedom of Information Law?

I listened to the debate between Mike Green and Cara Briggs on 1180 Wham news. Towards the end of the debate, Mike Green cited examples in which Cara Briggs offered plea bargains on sex offender cases. Cara Briggs responded by asking whether he obtained those cases while using Monroe County time and resources.

That was a legitimate question and a question which (obviously) came off the cuff. A candidate for public office cannot use government resources to further his campaign - meaning he cannot make calls from his office phone and solicit contributions and/or he cannot use government purchases papers to print out campaign fliers and/or he cannot obtain government documents for campaign use while he is supposed to be working. The question of whether Mike Green obtained these files while working as the District Attorney is a good and legitimate question but it may also be a question which may be difficult to answer (unless, of course, Mike Green offers to answer it).

Far more serious though is whether Mike Green complied with the requirements of New York's Freedom of Information Law.

Mike Green stated he reviewed some files in which Cara Briggs offered a reduction from a felony sex offense to a misdemeanor sex offense. The District Attorney's Office, as a government agency has a duty to maintain and store its files. For example, it is the duty of the District Attorney's Office to maintain and store all the files (opened and closed) ever prosecuted by Mike Green and Cara Briggs. Frequently, a prosecutor may have to order a closed case file in order to do his job as a prosecutor. Examples of this include

1. A Defendant appeals his conviction
2. A prosecutor wants to introduce evidence of the Defendant's prior crimes as evidence.
3. A prosecutor wants to write a letter stating his position on parole.
4. etc.

Under certain circumstances, a private citizen could view the non-privileged contents of a closed file maintained by the District Attorney's Office. In order to do this, that person would have to file what is called a Freedom of Information Law request (a "FOIL request') specifying exactly what government document that person wanted to review.

As previously stated, prosecutors routinely request closed case files when it has something to do with their prosecutorial function. Mike Green is the County's Chief Prosecutor and I am reasonably certain that he has requested a closed case every now and again.

However, as stated above, when someone is a candidate for office, that person cannot use government resources for campaign purposes. As a corollary, if Mike Green the candidate, wanted to review closed case files, he (or someone on his behalf) would have to file a FOIL request with a designated FOIL compliance officer. I do not know whether Mike Green filed a FOIL request in order to obtain those files or not but it is imperative that we find out.

You may ask, "so what?" Well, here is the "so what paragraph." There are (at least) 2 reasons why this is important:

1. If Mike Green the candidate did not file a FOIL request and, instead, requested these closed files like he would any other closed file, it would be an abuse of his elected office.
2. The three files that Mike Green "reviewed" were three sex crimes files. When it comes to sex crimes, under Civil Rights Law Section 50-b, there is some information pertaining to the victim which is deemed confidential. As a prosecutor, Mike Green would be privy to any information which falls under the confidentiality requirements of Civil Rights Law Section 50-b. As a candidate, though, he is like any other private citizen and must not allowed to see that confidential information. It would then be incumbent upon the FOIL compliance officer to make sure any confidential information was redacted or otherwise not made available. Now, if Mike Green the candidate did not file a FOIL request and, instead, requested these closed files containing confidential information under Civil Rights Law Section 50-b, then Mike Green would have violated the law - a law designed to protect victims of sex offenses.

"So what?" If Mike Green the candidate did not comply with the proper legal channels to obtain this information about Cara Briggs, he would have compromised the integrity of his elected office AND he would have done so for his own personal gain (winning the election).

I have to reserve judgment on "if" a FOIL request was filed because I do not know. I do know though that if a FOIL request was not filed, that would be an unconscionable act especially given the privileged information involved.

If Mike Green were to have said, "I filed a FOIL request and, as a result, I reviewed some of Cara Briggs' files..." his actions would enjoy the presumption of legality. He did not say that and, moreover, given the tenor and tone of his voice when he said it, it gave me the strong feeling that he, in fact, did not file a FOIL request. As I said, I have to reserve judgment because I do not have the requisite evidence to be certain, but based on his tenor and tone of voice when he said it, I have grave suspicions...

... and I hope I am not the only one.