By Mark David Blum, Esq.
They say that hard cases make bad law. Take for example, the case of People v. Donald Jenner. Originally sentenced to 15 years in by a Madison County Court and all his state appeals having been rejected, Mr. Jenner has turned his attention to the Federal Courts for relief. “Donald Jenner, 49, submitted his latest appeal to the U.S. Northern District Court in Syracuse last month. He's asking for a new trial on grounds that he shouldn't have been convicted of the same crime twice - the same incident led to a misdemeanor conviction on a lesser charge in Onondaga County before a later trial in Madison County Court.”
Boiled down to its gravy; in Madison County you are at risk of a Life Sentence for merely speaking words. Jenner, an “untreated sexual offender” (whatever that means) was living with his girlfriend in Madison County. A Social Services worker was helping the girlfriend regain custody of her child. Because the woman was living with Jenner, the woman was told that given Jenner’s status as an “untreated sexual offender”; she could not regain custody until she moved out of Jenner’s home. The choice was given to this woman to either leave the man she loves and give up her child, or give up her love and have her child. That choice is rough under the best of circumstances.
Jenner, of course, was not very happy with the edict from Social Services. In fact, it really pissed him off. So angry was Jenner that he went out of his way to verbally threaten to kill Madison County Social Workers and even had a few threats for some Onondaga County caseworkers. Jenner took no known affirmative steps to advance his threats; he only shot off his mouth.
For his mouthing off, Madison County prosecuted under New York’s new post 9-11 anti-terrorism laws. The DA Donald Cerio argued says the state law that applied to Jenner's case because Jenner’s words were intended to "influence the policy of a unit of government by intimidation or coercion." Judge McDermott sentenced Jenner to prison for life.
Think about this: For whatever reasons, motives, or fantasies, whether serious and intended or feigned, whether a pervert or a priest (or both), and even if there was real anger and intent behind every word …. This Defendant did nothing more than SPEAK hateful words.
WORDS!
“I am going to kill you … I am going to slowly dismember you while you are still alive and watch the blood ooze from your body as your life slowly disappears from your eyes … and while you can still feel pain, I am going to feed you to the dogs … and masturbate over what is left of you the entire time.”
If I say those words in this forum it is absolutely constitutionally protected speech. If I stood on a street corner shouting these words randomly to passers-by, MAYBE you could argue I am being disorderly. Should I ever utter those words to my wife when learning she wrote a check and did not tell me about it and all my checks are bouncing, technically she could call the police and lodge a charge against me for Harassment 2nd. If I said those words to the face of a police officer in anger and with full intention of fulfilling them, I still am guilty of no crime more serious than Harassment.
But, if a Social Services employee of Madison County were to tell my girlfriend that she cannot live with me and also retain custody of her child, even if the employee was within their legal rights, and I were to totally lose my cool and start shouting and yelling the words uttered above, the Madison County District Attorney feels that doing so is an act of TERRORISM. Madison County Court Judge Dennis McDermott agrees and would send me to prison for life.
To Mr. Cerio and Judge McDermott, I wish to extend my heartfelt thanks for taking American citizens down those first steps on the road to hell. You have now made it official and set precedent that Americans who lash out in verbal anger face life long prison sentences. You have created a class of Americans whose sensibilities are given extra protection than the rest of us and in doing so you have completely gutted the heart and soul of the First Amendment. Your grandchildren will be proud.
Technically perhaps, Cerio and McDermott are correct. Perhaps the way the statute was written, the defendant and his words fall within the definitions provided for an act of terrorism. But those laws were not written for day-to-day, run-of-the-mill criminal prosecutions. September 11, 2001 may have been a date that hardened the American heart against enemies of the United States, but it was not a day that we changed our basic belief system to include common criminals as being terrorists.
Our criminal justice system stepped off a cliff. Anti-terrorism laws were used against an American for his words alone. A man now sits in prison for life because of a spoken word. No Court, State or Federal, is going to undo the sentence or damage to the American ideal.
It is my opinion, in fifty years when our children look back and wonder what ever happened to the principles of free speech and the First Amendment, they will be able to point to the actions taken by Mr. Cerio and Judge McDermott. Future generations will question why everybody stood silent. Where is the media? How can citizens of this nation and the principles of Richard Stands, remain mum and uninvolved? When you give up someone else’s rights, you are giving up your own.
The persecution of Americans for their words in Madison County did not stop with Mr. Jenner. Apparently, “someone” in a position of power in Madison County was very offended at my words above and the opinion stated therein. The reader decided to take action and reported me to the Powers that Be and Who Oversee the behavior of attorneys. Whoever the complainer was, they chose to seek to have me professionally punished because of the content of this article.
The law on this subject is clear. What I do as an attorney … appear in Court, draft papers, or otherwise advance a case or controversy as a Lawyer and Officer of the Court is subject to the constraints and rules of the attorney’s Code of Professional Responsibility. Specifically, I am bound as a practicing attorney by the commentaries and statements I can make about a judge in Court or in papers. (DR 8-102B).
But, when I am not acting as an attorney, as I do when I publish here, the same rules do not apply. In these pages, you read what I as a private citizen who also happens to be a lawyer, thinks and opines about particular subjects. Nothing I say here is as an “attorney” or officer of the Court, but rather as a concerned citizen exercising his Constitutional rights to speak up about matters of public concern. The controlling case law on the subject in New York is found if found at Matters of the Justices of the Appellate Division v. Erdman, 33 N.Y.2d 559 (1973). There, New York’s highest Court said that the right of an attorney to make out of court statements accusing the judiciary of “buying their way into office”, “ rarely rule on questions of law”, and who were “whores who became madams” was constitutionally protected speech and not subject to disciplinary rules.
Nothing I wrote in the article about the Madision County DA or how the Court decided the case comes close to calling them “whores” or making any such references. In that article, as in everything I write, I try very hard to stay as close to the facts as they are known to me. My opinions are my own and are not subject to being “right” or “wrong”. Yet, at no time did I resort to name-calling or making personal comments about the Judge, the DA, or anyone else involved. My reputation has taken a hit in recent history for my own misbehaviors and since that time, I have worked as hard as I can to prove that indeed I have integrity and honor and do not cross that “line”. When I comment on what I consider to be a travesty of the law in Madison County, I am not making personal attacks against the players. Instead, I was insisting that they take a hard look inside their souls and think about the ramifications of that prosecution and sentence. Though the D.A, and Judge played their roles in the prosecution, I had hoped that the public would be outraged that a man was being labeled a terrorist and given an enhanced sentence because of “words”. Heck, the Onondaga County DA, under the exact same facts, with the exact same defendant, in a related case, felt that the words spoken amounted to a Violation, not even a crime.
I am not just some punk kid with a loud mouth. When I put my name on an article, I am backing up my opinion and perspective with a degree in Sociology from the University of California at Berkeley, Syracuse University Law School, and many years of civil rights and Constitutional Law trial litigation in State and Federal Courts. Add to that nearly one half of a century of life experience, and you will note there is indeed some punch and credibility to my conclusions. I tell you further that if I had made the “Madison County” argument and discussed it as a First Amendment issue to a gathering of the Bar, they would call it CLE. If I were running for ofiice, it would be a plank in my platform and discussed at every Middlesex, village, and farm.
You don’t have to agree with me. But when you don’t, don’t tell my Mommy and Daddy on me. Tell me to my face. Ours would be a professional disagreement, not a personal one. If you disagree with what I write, then draft a response. I have offered and will continue to offer any person equal time and space if they disagree with my writing. All you have to do is sign your name to it and I will publish it unedited. We get comments, arguments, and questions all the time in response to postings here and have worked hard to respond to every one of them. Contributing writers are always welcome.
But no matter what, the goal of this website will be preserved. It is a free-speech forum for its readers and its contributors. We may have an overall political spin and message, but we do not fear challenge or correction. There will never be hesitation to correct the record. I will personally openly apologize if that too is necessary. We are not out to slay anybody, we just want to talk.
To all readers and contributors and friends of MarkBlum.com, I leave you with this: DON’T BE A COWARD. If you got something to say to me, say it to my face. If I owe you an apology, I shall immediately do so. If you want to be heard, I shall give you the bandwidth. To not say anything and then grumble and growl about me behind my back, is not only unfair, but also petty and childish.
It would seem to me that when an attorney commits a sin as an attorney, as I once did, there is a valid reason to attack his license. But because you disagree with him politically or are offended by his opinions, that is not reason enough. This is especially so when it is a matter of public concern and which does not even approach the ‘line’. For the record, I have not received a single response disputing the facts nor the opinions contained in the subject article.
Next, on the subject of fair comment about judges, I would only ask that you recall some of the commentary heard over the years. Everybody from Bill Fitzpatrick to Bill Frist, from Tom DeLay to Randall Terry to Rush Limbaugh to Michael Savage to Glen Beck to Greta Van Sustern to Ken Starr to George Bush have all made some very intense and cruel commentaries about the Courts, specific judges, and the Judiciary in general. Some have called upon the Courts and Judges to have to answer for their decisions. Others have called for armed insurrection.
Not me. Not here. My absolute support and defense of the integrity of the judicial system is unequivocal and should never be questioned.
But I shall always reserve the right to comment.
