MORELAND COMMISSION EXPOSED
By Will Galison
because the Commission to Investigate Public Corruption is officially mandated to expose, investigate and prosecute corruption in every branch and at every level of New York's Government, including the Governor and the Attorney General.
If the Commission is not willing to investigate anyone and everyone about whom they receive allegations of corruption, they are violating their mandate, and the law. Whether Ms. Mahonie's confession was motivated by conscience or naiveté, it supports what many believe; that the Commission is using its vast powers to pursue only selected political targets while taking extraordinary, illicit measures to protect those with personal, professional and political ties to itself. How else to explain the apparent “sanitization” of testimony submitted by public witnesses - essentially erasing any mention of the potentially favored parties from the official record?
“It’s About Trust”
The formation of the Commission was Governor Cuomo's direct response to the legislature’s rejection of his anti-corruption “Clean Up Albany” bill, and he vowed that the Commission would be even tougher than the bill in routing out corruption in every corner of New York Government: “I said to the legislature right up front... if you don't pass the Clean up Albany legislation...I'm going to appoint a Moreland Commission… and THEY are going to clean up Albany”
Cuomo: Government Corruption a “Double Crime”
Governor Cuomo also spoke of his particular disgust with crimes involving public corruption, even in comparison to other crimes, stating “public corruption is a double crime. It's the underlying crime and then it's the crime of breaching the public trust, because when you're an elected official…you say 'trust me, I'm here to serve you'... so breaching that trust; violating that trust to me is a separate and inexcusable offense.
Finally, the Governor stressed that the sterling integrity and efficacy of the Commission members would be a shining example to the public and politicians alike, “The Commission will vindicate good elected officials to the extent that they are now being tarnished by the implication of the wrongdoing of the few… I believe there has never been a more credible group of law enforcement officials assembled in this state.”
The Attempt to Bar the “Public” From the “Public Hearings” of September 17, 2013.
Despite the media blackout, however, word spread among the community of corruption victims around the state, who for years had failed to find redress by existing oversight agencies. Many of these victims heard about the hearings through The Center for Judicial Accountability, (CJA) which notified its list of members and followers. When the first Commission hearing was held on September 17, 2013 about a hundred people gathered at the entrance of Pace University in Lower Manhattan to testify.
The Politicians Speak; the Public Listens
Chairman Fitzpatrick opened the hearing with a speech lauding the credentials of each of the 25 Commissioners, followed by his statement of the Commission’s intent: “The public frustration and anger with corruption has reached the breaking point… We fully intend to complete [Cuomo’s] vision of restoring the trust of the people in its own government”, he declared. Vance, Bharara and other invitees also gave lengthy speeches regarding their respective efforts against corruption.
The “Public” Testifies about Judicial Corruption
After listening to the politicians speak for over two hours, the members of the public were finally allowed to testify, but were granted a mere three minutes each and were threatened with forceful removal if they spoke too long. If the Commission strove to limit the public's participation because they feared people would raise allegations of corruption among their peers, their fears were well founded. The witnesses named names, and cited specific cases of alleged government corruption that had devastated their lives, and for which they said they could find no redress from any existing oversight agencies in New York State. To the Commission's obvious displeasure, nearly all of the witnesses complained of systemic corruption in the Judiciary; the branch of Government that New York State Attorney General Schneiderman has claimed could “police itself”. Some members of the public who testified also implicated the architects of the Commission itself, Governor Cuomo, and Schneiderman:
Elena Sassower of the Center for Judicial Accountability, spoke of the CJA's lawsuit against NY State charging that the recent pay raises for Judges (and District Attorneys) were illegal and unconstitutional and naming Cuomo, Schneiderman and Chief Judge Jonathan Lippman as defendants, among others. She also criticized the Commission for allowing conflicts of interest among its members.
Margarita Walter detailed how she lost custody of her three children and all of her assets through “a pretextual conspiratorial scheme of case fixing in the New York Court System”. She explained that she had taken her case to every appropriate authority in New York State, including Chief Judge Jonathan Lippman, the Commission on Judicial Conduct, Governor Cuomo and Attorney General Eric Schneiderman, but that she had been ignored.
I myself, presented evidence of corruption in the nomination and confirmation of Chief Judge Jonathan Lippman, including a recording of Judicial Nomination (JNC) Commissioner Fred Brewington stating that he had “shredded” evidence I submitted to the JNC. I also spoke of the cover up, by the New York Police Department (NYPD) and others, of the murder of anti-corruption whistle-blower Sunny Sheu.
Several witnesses also submitted copious written documentation in support of their complaints. Ms. Sassower submitted a stack of legal briefs several inches high, documenting the Center for Judicial Accountability’s lawsuit against Cuomo, Schneiderman and Lippman among others. I submitted the complaint against Chief Judge Jonathan Lippman filed with Preet Bharara, and a letter to Ray Kelly from the Blackstar News, demanding an investigation into the highly suspicious death of Sunny Sheu - neither of which had been responded to.
The Moreland Commission’s website, in it’s “Public Comments/ Testimony section, originally included the statement: “All written testimony submitted will be included on the record of the proceedings”, but after the testimonies of September 17, every mention of that extremely important provision has been expunged from the website.
As of this writing- over two months after the hearing- not one word of the written testimony has yet been published. Effectively, all the written testimony and evidence that was submitted to the Commission is being withheld from the public. Or has it simply been shredded, like the evidence presented to the JNC of alleged crimes by Jonathan Lippman?
What is certain is that none of the evidence of alleged corruption against Cuomo, Schneiderman and many other public officials submitted by the public witnesses was mentioned in the official Commission report to Governor Cuomo on December 23, 2013.
And the only official “record of the proceedings” available to the public is the stenographic transcript of the public hearings. That is why the accuracy and integrity of the stenographic transcript is crucial to any evaluation of the Commission's performance.
But even more troubling is what appears - unless the Commission provides an alternative explanation- to be the Commission's deliberate alteration of the transcript of witness testimony at the September 17 hearing, which is the only public record of the Commission's hearings.
It is clearly evident that the “transcript” of the witness's testimony posted by the Commission differs substantially from the actual testimony clearly audible on the video of the hearing, in ways that cannot be the result of mere “stenographic errors”.
CERTIFICATION; I, STEFANIE KRUT, a Notary Public in and for the State of New York, do hereby certify: THAT the foregoing is a true and accurate transcript of my stenographic notes.
- Chief Judge “Jonathan Lippman” is written “Jonathan Littman” 13 times, omitted 2 twice and never once spelled correctly.
- NY Administrative Judge “Anne T. Pfau”, is written: “Anne T. Fow”, twice
- Judge “Saralee Evans” is written: “Sarah Lee Evans”
- Judge “Scarpino” is written: “Scarpiano”
- Judge “Terrance McElrath” is written: “Terance Mukolrov”
- Judge “Paula Hepner” is written: “Paula Hevner”
- Attorney “Marc A Pergament” is written: “Marc A Pergamen”
- Judge “Betty Elrin” (who is on the Commission) is spelled correctly in the Commissioner's portion and omitted in the Public portion.
- The “Judicial Nomination Committee” is written: “The Judicial Violations Committee”
- The initials “JNC” are written: “JVC” three times
- The “Fund for Modern Courts” is written “The Funds for Modern Court”
- The “Committee on Judicial Conduct” is omitted twice.
- Judge “Jacqueline Silverman” is omitted
- “CASE fixing” is written: “fixing”
- -And my name, “Galison”, is spelled “Galveston” 19 times, even though it was spoken nine times by the commissioners.
- All of the proper names listed above (and many more) were spelled incorrectly every time they appeared in the transcript.
Whereas there are over 70 errors in the 122 lines of transcription of my testimony, there are only five in the 152 lines of Mr. Bharara’s testimony. In the nearly 500 lines of testimony of Chairman Fitzpatrick, there are zero substantive errors.
If the transcript was not altered, Ms. Krut is – occasionally- a speller with a nearly paranormal ability to discern between the various spellings of names that sound identical. For example, Ms. Krut recorded the name of the law firm Vladeck, Waldman, Elias and Engelhard with perfect spelling, despite the rare variations in the names’ spellings. According to a search the Whitepages.com website, there are at least four different spellings of the name pronounced “vladuk”, including “Vladic”, “Vladick”, and “Vladich”, and the spelling “Vladeck” occurs in only one case in ten. How could Ms. Krut know which was the correct spelling?
-Likewise, the name “Engelhard” is seven times less common than its homonym “Engelhardt”, but Ms. Krut made the distinction.
-The name that sounds like “Chamberlain” in the video is 20 times more likely to be spelled “Chamberlain” than “Chamberland”, but Ms. Krut nailed it.
In fact, Ms. Krut spelled perfectly every single proper name - approximately 50 different ones - uttered by Commission Chairman Mr. Fitzpatrick in his introductory remarks.
Intentional Alteration? “Extraordinary Claims Require Extraordinary Evidence”
The Extraordinary Evidence:
As it turns out, there is at least one feature of the transcript that the Commission cannot say was a mere “stenographer's error”. It occurred during Chairman Fitzpatrick's introduction of the Commission members and their accomplishments, as he introduced Commissioner Makau Mutua.
“Dean Makau Mutua is the Dean of the SUNY Buffalo Law School. He is also the SUNY Distinguished Professor and the Floyd Hilda Hurst Faculty Scholar at SUNY Buffalo. Dean Mutua came to us from Nairobi where he attended the University of Dar-es-Salaam, and Nairobi's loss, believe me, was America's gain. He is also a graduate of Harvard Law School”.
The transcript is subtly different however. At line 4 of page 7 Fitzpatrick states:
4 Dean Makau Mutua is the Dean of the SUNY Buffalo Law
But look closer; Ms. Krut also added something to the transcript that was not spoken by Fitzpatrick at all. The transcript says “Hilda L. Hurst”, and Fitzpatrick never uttered the initial “L” or anything that sounded like it.
Could Ms. Krut have heard, between Fitzpatrick's words “Hilda” and “Hurst”, some random noise in the room that sounded to her like the initial “L”? If she did, it would be one of the most amazing coincidences in history, because Dean Mutua Makuta is, in fact, the “Floyd H. and Hilda L. Hurst Faculty Scholar at SUNY Buffalo”.
A stenographer may omit and misspell words that are spoken at a tribunal, but she cannot record information that she has no way of knowing, if it is not spoken at all.
The protocol for making corrections in the transcript is strict and well established. According to Harriet Brenner Gettleman, President of the New York Association of Court Reporters (NYACR); if the entity that ordered the transcript (in this case the Moreland Commission) wants corrections made in the transcript, it must send the desired corrections to the stenographic company (in this case Precise Court Reporting) that reported the hearing.
And according to Ms. Seth, the Commission could not have altered the transcript either legally or technically; “The Moreland Commission cannot change [the transcript] on their own…you just can’t change things like that, this is a legal document that’s already been established…they don’t have the software to change the transcript” she said.
NYACR President Harriet Brenner Gettleman, concurred: “The Court Reporter shouldn't have put the initial [“L”] in if it wasn't said... she would have written whatever was said verbatim.. corrections would not have been made except through the agency... they could not have [legally] sent [the corrections] directly to the stenographer”. Since the transcript was never sent to Precise Court Reporters for corrections, and since the Commission does not have the software to alter the transcript, it appears that Ms. Krut created the transcript not solely from her stenographic notes, as affirmed in her oath of certification, but with input from an outside source.
Why Would the Commission Alter the Transcript Secretly and Illegally?
The Commissioners could have corrected the spelling mistakes easily and legally by simply asking Precise Court Reporting to make the requested changes, so why didn't they do that?
Perhaps because if the Commissioners had admitted to reviewing and correcting the transcript legally, they would be hard pressed to explain the dozens of uncorrected errors in the public testimony portion that still remain on the same transcript. For example, how could they explain that they had not noticed the misspelling of Chief Judge Lippman's name as “Littman” 13 times?
The Significance of the Alterations
All else aside, the alteration of the transcript from her original notes would mean that Ms. Krut’s “certification” is fraudulent; the published transcript is not a “true and accurate transcript of [Krut’s] stenographic notes”. It also means that the transcript was altered after the hearing and before the Moreland Commission posted it as the official record of the September 17 hearing weeks later.
How an Altered Transcript Reversed the Conviction of a Child Molester
4) Federal law 18 U.S.C. § 2541 for conspiracy to deprive the 14th Amendment rights of the witnesses, for redress of grievances, among other things.
5) Crimes under Color of Law, for all of the above in the responsible parties' official capacities as deputized Attorney Generals.
6) NYS Public Officers law §74, for using “his or her official position to secure unwarranted privileges or exemptions for himself or herself or others”
Who Would Be Guilty?
If members of the Commission ordered the alteration of the transcripts to protect their friends and colleagues from investigation, that would be essentially an issue of “conflict of interest” which is defined by Nolo's Legal Dictionary as: “a real or apparent conflict between one's professional or official duties and one's private interests”.
In this case, the commissioners' “official duty” is to investigate any crime brought to their attention, and their “private interest”, real or apparent, is to protect their friends, associates and employers from criminal liability.
The significant conflicts of interests of the commissioners are too numerous to address in this article and will be he subject of separate article, but several were directly addressed in the Center for Judicial Accountability’s August 5, 2013 letter to the Commission: The letter, which has never been responded to, asks the Commission to identify it’s protocol for dealing with obvious and potential conflicts of interest of Commission members, special advisors, or staff:
Likewise, how will Commission Special Advisor, outgoing New York Police Department Commissioner Ray Kelly handle the complaints already submitted against corruption in his NYPD? How will Chairman Milton Williams handle the numerous complaints against his old friend Judge Lippman, who Williams’ “Fund For Modern Courts” effectively put into power?
Moreover, how would any of Commissioners, as “Deputy Attorney Generals”, handle complaints against the man who convened the Commission in the first place, Governor Cuomo? The fact that the Commissioners are being asked to investigate their friends, colleagues, employers (and potentially themselves) is the very situation for which conflict of interest rules and laws exist.
The Moreland Commission has refused to divulge its protocol involving matters of conflicts of interest- if they have one. The Center For Judicial Accountability's August 5th letter requesting this protocol was ignored by the Commission.
Whatever the Commission's protocol may be, it is certainly bound by NY Public Officer's law §74 and by Executive Order 106. Any commissioner who is presented with evidence implicating his friend, colleague or employer, must disclose that potential conflict of interest and recuse himself from any investigation regarding anyone or any matter with which he has a potential conflict of interest. But that would require every member of the commission to recuse themselves regarding complaints against Schneiderman or Cuomo.
According to ¶ IV of Executive Order 106: “If in the course of its inquiry the Commission obtains evidence of a violation of existing laws, such evidence shall promptly be communicated to the Office of the Attorney General and other appropriate law enforcement authorities, and the Commission shall take steps to facilitate jurisdictional referrals where appropriate.” In other words, the Commission is mandated by law to investigate violations of law by anyone; including their friends, colleagues, employers and fellow commissioners.
Of course, the Commission did indeed obtain evidence of violations of existing laws by Chief Judge Lippman, and various judges and attorneys with connections to the commissioners, but in violation of ¶IV, they have failed to communicate such evidence to the appropriate authorities. If indeed the transcript was deliberately altered, it would appear a member or some members of the Commission expunged the names of people against whom criminal allegations had been brought, through intentional misspellings and omissions. Rather, they appear to have expunged these alleged criminals' names from the record through intentional misspellings and omissions.
Corruption in the Moreland Commission: A Triple Crime?
- Over the past three months, The Blackstar News has reached out to the Moreland Commission on numerous occasions, requesting responses to the questions raised in this article. Simple “yes or no” answers to our questions could have put to rest any appearance of impropriety by the Commission, but as of this printing, the Moreland Commission has refused to reply to or acknowledge our correspondence.
--The Commission has refused to correct or even acknowledge the “errors” in the official transcript, despite correspondence enumerating these inaccuracies and requesting their correction.
-The “official record” presented to the Governor and the Attorney General is the wildly inaccurate and illegally altered transcript.
-Not one witness that testified has been notified by the Commission to follow up on their allegations and evidence of public corruption.