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On Taking the Shot

January 27, 2015

Having said what we said about Mr. Bahrara’s case in our previous post, let us now describe how it might be seen in a different light.

We were at an event a while ago in which Eliot Spitzer was fielding questions from an audience of law students.  He was asked: Did you ever advance a case secretly thinking it had little chance of winning?

He said there was only one such time. It was lawsuit against gun manufacturers.

He explained that his staff had determined that the handguns used in 42 percent of violent crimes in New York City could be traced to half dozen gun retailers in the region surrounding the city. He said that the guns sold by these stores were designed for crime. The guns were cheap and had features like fingerprint resistant grips and triggers, and serial numbers that could easily be altered.

Spitzer said that even though it was a long shot to try to connect the gun manufacturers to the crimes that occurred with guns they produced, he still wanted to bring a “public nuisance” case against them. He said the fact pattern was so egregious that he felt compelled to bring the case and argue it himself in front of the judge, and he did.

Digression: This was another one of those moments when we could only grimace and shake our heads at the sad contradiction of Spitzer. He is an eloquent person capable of remarkable sophistication in conceiving of new ways to use the law to affect positive change, but he couldn’t avoid the basest, dumbest personal conduct.

Back to Mr. Bahrara: Is it possible that he is doing something now that is akin to what Spitzer did then? Is it possible that he knows that the Silver case is a stretch, but he brought it anyway reasoning that without it, a system inherently prone to conflict and abuse would never change?

It’s interesting to note that one of the key lawyers involved in Spitzer’s gun case is the lead on Bahrara’s case against Silver.

Perhaps Mr. Bahrara’s motivation was to do something, anything to shake up the system, and if so, we give him credit for having gumption and balls to do so. But our admiration is tempered by concern over the precedent it sets (see previous post) and by the destabilizing effects of the action. It really is chaos now in Albany.

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5 Comments leave one →
  1. chuck houghton permalink
    January 27, 2015 12:13 PM

    you all are frauds. I always suspected that you were working for some elected official and I now I know it is Mr. Silver.

    Can’t you see how bad it looks to have some one as Speaker raking in money for doing nothing.

    • January 27, 2015 2:24 PM

      Dear Anons and Chuck:
      We don’t mean to be condescending with our reply, but you can’t do this.
      You don’t like what we’re saying. It doesn’t square with what you’re thinking. It’s isn’t all wrapped up in a way that makes the good and bad, the right and wrong so comfortably clear. So you attack us.
      You say: How can anyone in the world defend Silver in this situation?
      Oh, yeah, anybody who does must be on his payroll. That’s it.
      Well, that’s not it.
      Please try to understand this: Saying that a prosecutor may have overreached in this situation is not a defense of the underlying conduct.
      You know that we know the system must change. The question is how. Our view is that it can’t change for the better as a result of prosecutors contriving a case that won’t win and won’t sustain review.
      We see ourselves saying essentially what we heard Blair Horner say last night, which is that getting rich in public office is wrong, but it is not illegal — not until lawmakers themselves pass laws that draw clear lines on what is acceptable and what is not. That’s the answer here. It is not a prosecutor’s job to draw the line.
      We are not going to do what you want us to do. We’re not going to be like politicians and tell you what you want to hear. You want to us to say: We don’t like Silver. We don’t like the fact that he’s been in office for decades and has been an obstacle to reform. We were disgusted at the way he handled sex scandals in the Assembly. We’re appalled that he amassed a fortune in office.
      That’s water cooler talk. That’s a justified rant, but a rant all the same. Tune into a radio talk show for that.
      We hate to do this, but if you don’t get it, you can’t be in our little treehouse.
      We’re not saying you have to agree with us. Hell no. In fact, we want you to disagree.
      But do so after you’ve talked to a really good lawyer who has experience in prosecuting and defending public corruption cases. Ask that person for his or her views on the Silver case. Then come back to us.
      Sincerely,
      NT2

  2. Anonymous permalink
    January 27, 2015 1:32 PM

    I think you have been underestimating Preet, because if there’s one thing I am pretty sure he knows is that, per Machiavelli, that if you strike at a king you must kill him.

  3. Anonymous permalink
    January 27, 2015 3:31 PM

    It’s very much to your credit that you try to remind people of the
    broader ramifications. Keep up your spirited contrarianism. Give em hell. At the same time, I, too, think that Preet must have a smoking gun he hasn’t yet disclosed.

  4. Anonymous permalink
    January 27, 2015 4:30 PM

    You write:
    “We see ourselves saying essentially what we heard Blair Horner say last night, which is that getting rich in public office is wrong, but it is not illegal — not until lawmakers themselves pass laws that draw clear lines on what is acceptable and what is not. That’s the answer here. It is not a prosecutor’s job to draw the line.”

    That’s exactly what we said in a recent comment, when we said the Legislature has nobody to blame for Preet’s assault but itself. It should have regulated itself but it didn’t. You say the glass is half full; we say it’s half empty. I agree that Preet is a prosecutor who has gone to far. In this, he follows a national trend. But smart people wouldn’t give Preet and his ilk the opportunity to attack them. And ethics did not erupt as an issue last week.

    BTW, I have no opinion on whether anything Shelly did is illegal (ie, violates a statute). That’s your jumping to conclusions about what I wrote. What I have said is that IT LOOKS BAD, that is, IT APPEARS TO BE A CONFLICT OF INTEREST. Once upon a time, some politicians used to say that they needed to be more spotless than Ceasar’s wife and avoided the appearance of conflicts of interests. (BTW, avoiding bad and misleading appearances is a huge concept in Jewish law.) Not sure when that concept became unfashionable.

    So, yeah, Preet is a bully. But he’s doing what the people of the United States pay him to do, which is prosecute.

    The people of NYS don’t pay the salaries of state pols so that they may enrich themselves. We pay them to do our business. We also pay them to police themselves. In other word, TO LEGISLATE. They’ve abdicated their responsibility. And BTW, what we pay them for part-time work is more than most New Yorkers get for toiling full time. So you can see why there is no public support for raising salaries.

    In the quote above, you’re acknowledging that they’re not doing the job we elected and pay them to do. But what you don’t acknowledge is that, by so abdicating, they have broken the trust of their constituents and injured the body politic. So while unethical behavior might not be a crime, it doesn’t mean that there’s no victims. We’re all victims, and the enormous public cynicism about and disinterest with NY politics is the result.

    It is not a rant to say so. It is a righteous cry.

    I’m sorry for the ad hominen jibe, but I’m just trying to understand why that element is missing from your musings. I’m sorry, also, if that seems naive to you.

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