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William Fitzpatrick on the Campbell Conversations

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William Fitzpatrick on Campbell 4-9-22
William Fitzpatrick

On this week's episode of the Campbell Conversations, Grant Reeher speaks with Onondaga County District Attorney William Fitzpatrick. Currently serving his eighth term, Fitzpatrick has held numerous state and national leadership positions in the criminal justice system. They discuss aspects of the newly forged state budget, a recent high-profile case his office recently prosecuted, and marijuana.

Program Transcript:

Grant Reeher: Welcome to the Campbell Conversations. I'm Grant Reeher. My guest today is Onondaga County District Attorney Bill Fitzpatrick, a Republican. He was elected to the position in 1991 after serving as chief assistant district attorney and also as a defense attorney. He's currently in his eighth term as D.A. Over the years, he has served in a number of state and national leadership positions in the criminal justice system. Mr. Attorney Fitzpatrick, welcome back to the program and it's good to see you again.

William Fitzpatrick: Same here. Grant, good to see you. It's been too long.

GR: Yes. Well, we'll cover the waterfront a little bit since it has been a little while. So I've got a bunch of different questions to ask you. Sure. Let me just say at the beginning for our listeners, they should note that you and I are speaking on Thursday morning and a state budget deal appears to be imminent. But Governor Hochul has put forward ten changes to the criminal justice system and she's attached those to the state budget. Now, many progressives and criminal justice reform activists have objected to this package. You recently wrote a piece in the Post-Standard supporting those proposals in the main. And so I wanted to ask you a few questions about that. First of all, which of those proposals do you think is the most important for changing the criminal justice system? And why do you support them?

WF: Probably the most important one to me is the least attractive one, the least sexy one, and that's the proposal number six, that has to do with discovery. For years, the law in New York was that a defense lawyer would not get a full discovery package until after a jury was selected and before his or her opening statement. Now, in 30 years, I've never followed that policy. I think it's Kafkaesque it's unfair and it's not copied in a lot of other jurisdictions around the country. So what I did was I had basically an open file policy. I still do. But now it's gotten so onerous that I've had really one of the biggest turnovers in my 31 years as D.A. You know, people are coming in and say, Boss, you know, I didn't sign on to be a file clerk. And I'll give you example of how draconian and silly it can be. We had a case with ten cops responded all wearing body-worn cameras and, you know, several days not imminently before trial, but several days before trial. The prosecutor discovered that there's actually been an 11th cop at the scene and he had not filled out a report and had not submitted his body-worn camera footage. We discovered that we reviewed the body on camera footage, had nothing to add inculpatory or exculpatory to the case. And the judge dismissed the case because we had not turned it over. That's wrong. That's just flat-out crazy. And it's got it. That's got to be changed. And I think the governor's point that quote-unquote, substantial compliance is sufficient. And, you know, leaving a lot of it to the discretion of a judge. There's many other things that I like. I like all ten of her points, but that one has not gotten a lot of publicity. But to me, that's the most important. I can't keep, we can't keep losing good prosecutors who, you know, as one of them said, didn't sign on to be file clerks.

GR: So let me just make sure I understand the full scope of the change. So part of the change is also that the evidence needs to be shared earlier than this late moment that you that your office always, you know, did it differently than. Is that right?

WF: Yeah, that's right. Right now it's 15 days.

GR: OK.

WF: That's just as I said, it's just not practical.

GR: OK, all right. So the defense will get the evidence earlier. And there will also be this judgment call that if you are in substantial compliance, that's not going to be the basis.

WF: Yeah. Look, you're right. You know, if I show up on the day of trial and say, hey, geez, I'm sorry, I forgot to turn over, there's DNA evidence implicating your client, obviously, that's going to get a huge sanction and as it should, that's just either intentional or it's just incompetent. But, you know, something like the situation I just described doesn't convert to any prejudice against the defendant.

GR: And then also, you know, the issue of bail reform has been huge, so comment a little bit on that and your views on that.

WF: Yeah. I mean, there are, you know, a lot of disagreement about how impactful the bail reform has been. I mean, my argument is very very simple, Grant. Just look at what's going on in New York. 44% increase in crime in New York City, just this calendar year, you know, less than four months in. And what significantly has changed, it's not related to the pandemic. Maybe some juvenile crime might be related to the pandemic because kids are not in school. They're not getting social skills development. They're not getting counseling and things like that. But adult crime has nothing to do with the pandemic. In fact, the pandemic should have resulted in a decrease of crime. You know, fewer people leaving their homes. Despite what you may believe, burglars don't like to attack homes that are occupied, people not traveling, people not going out to restaurants. But be that as it may, it's clear that there's a serious issue. But when you have a case like Victoria Afet, 23 years old, she's got five separate pending felonies, two of which involve crimes of violence. She has nine pending misdemeanors. And the judge looks at my assistant D.A. who asked for bail and says, no, under the new bail law, I have to use the least restrictive means allowable. So I'm going to release her on her own recognizance. And then less than a week later, you know, she kidnaps or holds at, you know, knifepoint, Connie Tuori, 93 years old, and torture and murders her in her own apartment. And that's not anecdotal. That's not one isolated case. That's the most serious example of what I'm talking about. On a far lesser degree, we have a guy we call the porch pirate. He follows Amazon trucks around the city in Syracuse. And when the packages are deposited on a porch step, he'll wait. And if the occupant doesn't come out immediately, he'll just go up and help himself. He had done this five separate times and you say, well, that's nonviolent. Well, you know, maybe it's nonviolent, but it ruins people's Christmas. It ruins people's birthdays. You know, maybe it's a grandparent getting a present for their grandkid or some other happy event. And those events are ruined because of this guy. Five separate events couldn't set bail on any of them. So he's just he's out awaiting trial. And I'm sure he's busy doing what he does.

GR: Hmm. One thing I wanted to ask you about with this is that some legislative leaders there are mostly or all Democrats at least as far as I've heard, have argued that allowing a judge to have more discretion in this area, which is what this change does, it allows the judge to take into consideration exactly the kind of things that you're talking about and then say, OK, I am going to set bail in this case. They've argued that allowing the judge that discretion will immediately and inevitably result in racial bias. And it strikes me that if that's the case, couldn't one argue that the criminal justice system has to be insulated from its own judges? There's a problem so fundamental with it that we've got to think about starting completely over. I mean, I don't that argument seems a bit strange to me.

WF: And it should. Couple of reasons. Number one, most of the judges in New York City are appointed by the political leaders, of which the speaker and the president of the Senate are intimately involved. I know the president of the Senate is from Westchester, but she's intimately involved in New York City politics. So my advice to, you know, Miss Cousins and Speaker Heastie, stop appointing racist judges, OK? They don't understand the difference between causation and correlation. They think that if ice cream sales go up in July and sunglass sales go up in July, well, ice cream must affect a person's vision and sensitivity to light when in reality, they both have to do with separate things that it's warmer in July and more sunshine in July. You know, this blanket notion that if judges have discretion, it will result in racial disparity. You know, it's just such a weak argument. And I would say that the reforms that you put into place. Well, intentioned as they may have been, are ravaging the minority communities that you're supposedly trying to help. I mean, people aren't getting shot on a daily basis in Fayetteville and mainly as in Lafayette where I live. These are inner-city crimes. I mean, my phone goes off every time there's a shooting in the city circuits and it goes off every night.

GR: Mm hmm.

WF: And as I say, when I look at the addresses, it's not suburbia. It's the inner city.

GR: Mm hmm. You're listening to the Campbell Conversations on WRVO Public Media. I'm Grant Reheer, and I'm speaking with Onondaga County District Attorney Bill Fitzpatrick. And we're discussing the criminal justice reforms included in Governor Hochul's budget proposal. So let me ask you to put on the hat of a political observer for a minute. And ask you if you think to some degree, anyway the governor, in putting forward these proposals, is trying to protect her right flank because, for example, former Governor Andrew Cuomo came out for making these changes. Republican Lee Zeldin, Democrat Tom Suozzi, who's challenging her in a primary. They have said that the rollbacks should go even further than she went. So do you think that's part of the political calculation here?

WF: Yeah, and it should be she should be responsive to people's desires and people's needs. You know, cynically, somebody might say it was because she got booed at a Rangers game and realized the extent of the problem. I would give her more credit than that. She's been around a long time. I've never met her, but I have some close friends who are close to her. I know her husband, who used to be the United States attorney out of the Western District of New York. I think she cares about public safety. So, you know, to say that she responded to political winds, I don't necessarily look at that as a pejorative thing. I looked at it as a positive thing. That's what elected people are supposed to do.

GR: Hmm. And lastly, on those, there are some aspects of these proposals that I think progressives and other people on the left should like. For example, increasing the funding for mental health treatments for the homeless, an extension of the law that allows courts to mandate outpatient treatment for people with mental illness. There's a toughening of the process for criminal gun possession and hate crimes, and there's tougher penalties for illegal gun sales. So those are things I you know, normally the left is in favor of. Are you OK with those, too?

WF: Yeah, I certainly am. And I agree with some who have said they don't go far enough. But as I said in my letter to the editor, I don't want to jettison the good in my quest for the perfect. I think it's a good first step. And if we pass the governor's proposals and we see a concomitant drop in crime, then I think people might step back and say she's you know, she has a good point here. We really ought to start exploring if we can make. Nobody's asking to go back to the old ways, you know, holding people on $500 bail because they stole a Slurpee from a 7-Eleven, you know, at a gas station or, or something like that. Nobody wants to go back to those ways, but just some common sense tweaks, reforms just to get our ultimate goal of keeping people safe. You know, we can pour all the money we want, grant into opportunities, job training, education, et cetera, et cetera, et cetera. All that goes down the drain and the kid's walking to school and he gets killed in a drive-by. None of that means a thing.

GR: So why again, political observer hat back on your head, but why do you think that progressives, others on the left, haven't been willing to give on some things in order to get those other things that I just mentioned? I mean, everything's a trade.

WF: Yeah, I know. And I'm not sure I can answer that, but I'll give it a try. It's kind of like, you know, Lord of the Flies, when the plane crashed and all the adults were killed and the kids realized, oh, my God, we're in charge. And I analogize the progressives and they're really not progressives. They're I think they're radical leftist. And I really think that now there's almost a hesitancy to say we made a mistake. It's almost like it's dishonorable to do that. And I think good leaders, good politicians, good district attorneys admit plenty of times we made mistakes and we got to we got to change course here.

GR: Mm hmm. You're listening to the Campbell Conversations on WRVO Public Media. I'm Grant Reheer and I'm talking with Bill Fitzpatrick. Mr. Fitzpatrick has been the district attorney for Onondaga County since first being elected in 1991. Well, let's shift gears and talk about the relatively recent case that you and your office tried for a second time. The Dr. Robert Neulander case. First of all, congratulations on winning a conviction for the second time. I am not an attorney or a judge, but at least from the outside and from a distance it seemed to me that the defense's theory of the case was hard to believe. There's been a lot written on this, and I won't go over the whole case with you again. What I had was a couple of questions that puzzled me at the time that I that I haven't gotten answers to. And then I have one question about this looking forward. So, first one is it seems like the second case went really fast all around. Maybe that's just me, but I was expecting it to be more drawn out.

WF: You know, in terms of time, I think it actually mirrored the first trial, just three weeks.

GR: OK.

WF: Yeah. It might have seemed like it went faster because Mr. Bach, who was the new lawyer, I thought he was a consummate professional. We didn't argue about a lot of stuff. You know, you already have a blueprint of the case. You know what's admissible, you know what's not admissible. You know where mistakes were made. And Mr. Bach and I agreed, you know, before trial, for example, on the night one on one call, we're not going to call the 911 operator. No reason to. That's something that, you know, that probably saved a half an hour. And then you multiply that by three or four or five different other things and you're saving yourself a couple of days. So I thought it moved pretty well and it might have seemed like it went quicker because the verdict came so much more quickly.

GR: Yeah, maybe that's what I'm thinking of. It just was it was less than it was.

WF: It was yeah. It was under 6 hours. And last time, if I recall, it was the better part of three and a half days. And in the first trial, there were a number of readbacks. This jury only sent out one note. They wanted the PowerPoints from both summations presented to them. And the judge explained, look the PowerPoint are demonstrative. There's some things in the PowerPoint that were admitted into evidence. I can send you those things but I can't send you the PowerPoints themselves. That's the last we heard from them. Next note was verdict.

GR: Hmm. Interesting. Yeah. The second question is it puzzles me to some degree anyway, that his children have remained supportive of him. Is that is that a common thing in a case like this?

WF: Yeah. You know, you look at O.J.'s kids to go back there, they're very loyal to their father, at least publicly. And yet, you know, the evidence is fairly overwhelming, like this case that the father killed the mother. I think sometimes we want to retreat into a safe place in our in our brain. OK. It's a it's a fact. We lost mom. Are we going to lose dad as well? I have no quarrel with Ari, the son. He wasn't there. You know, he had left that night about 10:30, 11:00. And as far as he knew, everything was fine. Jenna, though, is a different story. You know, she was there. And one of the most damning things against the doctor was, you know, Jenna picking up that phone after putting the 911 operator on hold, and the first words out of her mouth are, oh, my God, there's blood everywhere while her mother is still being extricated from the shower by her father. So it's a very, very simple question. I asked this. How could there be blood everywhere when there should be blood nowhere save the shower? And the answer is because there was a struggle and a beating and an attempt to cover this up. So, you know, does Jenna know or not know? I don't get involved in it. You know, she suffered enough. There's not going to be any perjury charges against her. I already made her lawyer aware of that. So, you know, she I don't really I'm not going to play psychologist with her.

GR: Mm hmm. And then my last question on this is I understand the correct me if I'm wrong, sentencing is scheduled for April 11.

WF: It's actually been moved, a mutual request of the defense and prosecution to May 2 at 1:30.

GR: OK. So and I don't know what you are able to say about that beforehand, but can you say what you'll be advocating for in terms of...?

WF: Well, because he's already been sentenced to 20 to life. The parameters are very narrow. It's either 15 to life, 20 to life or somewhere in between. You know, I thought 25 to life was appropriate the judge disagreed. Gave him 20 to life. I'll certainly be asking for 20 to life again.

GR: What are the chances if he gets 20 to life that he will be out of prison before he dies?

WF: Not good. He's not in great health. He has kidney issues. And, you know, if, if there were any a time to, you know, come clean and confront what you did and admit what you did, now's the time. Otherwise, you know, he would be in his early nineties before he's parole-eligible, assuming he lives that long.

GR: Mm hmm. If you're just joining us, you're listening to the Campbell Conversations on WRVO Public Media. And my guest is Onondaga County District Attorney Bill Fitzpatrick. All right. Well, let's go from murder to marijuana. And I have a couple of questions about that. When marijuana was legalized in New York, gifting smaller amounts was also legalized. And some folks have inventively interpreted that particular aspect of the law. The idea is, you know, I'll sell you something completely worthless for 50 bucks. Oh, and by the way, I'll also give you some pot, too. And then there are pop-up markets that have emerged where the stuff is done very systematically. OK? Your office, if I understand correctly, has taken no position on this. What does that mean practically in Onondaga County?

WF: Practically, it means that marijuana is essentially legalized, although there are some restrictions on what you can do now. I have to be responsive to the people that I represent. You know, when I go to forums and neighborhood meetings and churches and funeral homes, all I hear about is gun violence and quality of life. And so forth and so on. I don't hear people, you know, jumping up and down saying, hey, you know, this guy on a corner try to give me, you know, a half-ounce of pot or something. Not to say that I'm going to ignore it, but it's not going to be a big priority of mine, Grant, you know, going around it. The difficulty with from my perspective is traffic safety. Yeah. You know, I have some close friends in Oregon who are D.A.s where pot has been legal for quite a while now. And they tell me that traffic fatalities have gone up significantly. They tell me that impaired driving, is difficult to detect when someone is under the influence of marijuana because you can stay in your system for quite a while. Doesn't mean you're that you're being affected, that your faculties are being affected by it. And they also tell me that the black market is still very significant and that there's still the attendant violence to the drug trade that you see. So, you know, governmental issues, I see government, you know, is coming to the rescue. I get I get nervous. And if there were I think of there are less government regulation, less tech, less taxation on it than their ultimate goal of not criminalizing it and getting tax revenue from it would be would be realized as opposed to the setup they have now. You know, where people are, you know, there's going to be a ton of fraud and people getting licenses. There's going to be scams going on and so forth and so on. So but to me, the traffic fatalities is the number one concern that I have about it.

GR: So my next question about this follows directly from what you just said before. You mentioned the final comment about traffic, which is the fraudulent licenses and so on. Right. When our next-door neighbor Vermont legalized marijuana, I guess I should say, formally legalized it. It also had a gifting policy like New York has, but it also included the ability to grow it, and New York

doesn't have that. Now, it seems to me that if you've already put in place limits on how much you can possess, then why not let people grow it within those limits? And I wonder politically in New York state whether it the state wasn't protecting the emerging cannabis industry.

WF: Sure they are.

GR: More than guarding the public safety, because I would think that allowing people to grow it. And in Vermont, because people grow it there, there isn't the same interest in dispensaries because, you know, there in Vermont, they grow it all the time.

WF: Yeah. And grow it. And, you know, the politicians are upset because they're not getting tax revenue from, you know, private privately grown. So, I mean, I don't I'm not a, I've never smoked pot in my life. Not that I'm bragging about that. I just, my generation I obviously the vast majority of people that were in school with me did smoke pot.

GR: You still have time. You still have time.

WF: So I, I guess I could do whatever. But you and I are old enough to remember Bill Buckley when he sailed out, you know, four miles and he lit up the marijuana he thought it was the greatest thing. And people were like, What? Bill Buckley, our last conservative icon. You know, again, going back to what I said earlier, I like to be responsive to the people I represent. And I just, you know, homegrown licenses. Any time you get the government involved in something like that, you got it. You got to build in a 20% fraud factor kickbacks. You know who's just follow the money you watch who's going to get the vendor licenses for the pot. It's not going, believe me, it's not going to be you or me. It's going to be fat cats.

GR: So I got about 2 minutes left and I want to squeeze in a couple more questions here. First one is about you. You've been in office, as I have mentioned, a couple of times now since taking office in January 1992. You won the district attorney's office in '91. That's a good long run by anyone's standards. Have you made a decision on whether you'll be running for reelection again?

WF: Yeah, next year, I'm up and my intention right now, God willing, is to run. what I'm grappling with is I may announce that it's my last time running, but, you know, I got to sit down and talk to my wife, kids and supporters, family and my DA's family here, but very, very likely that I'll run next year. And if you know, if the voters want me, I'd love to serve four more years, I'm in good health. I love this job, Grant. It's you know, if you told me in 91 that, you know, you're going to have the job for 20 years, I would have said, great, let me sign up now, you know, and I think we run a good office. We're certainly nationally recognized. I like to think that we're a beacon of justice. You know, if you look at the Anthony Broadwater case where, you know, I exonerated that man who was wrongfully convicted, I think a lot of officers would have just gone to the court and said, Hey, this guy's had his bite at the apple, you know, judge found him guilty. It was non-jury. That's it, you know, sorry, can't help you. But that's not, that's never been my style. And I think people respect that.

GR: Only about 30 seconds left. I want to squeeze in, though. You mentioned Broadwater. I did interview Broadwater's defense attorney, and he gave you kudos for that. Last question only 30 seconds. I hate to do this to you, but are there any new initiatives that your office is taking that you want to just let our listeners be aware of if you can just give them names?

WF: Yeah, you know, I can't conjugate a verb in 30 seconds, but you know, real quickly I want to do a more holistic approach where we get people into the services that they need in a quicker fashion. You know, maybe even at arraignment, you know, we, we can tell good prosecutors, no, this case is not going very, very long. Let's get the guy into alcohol, drug, mental health, whatever the treatment is. And we're going to need cooperation of the court system. And I think I think that's something that will be exciting and good.

GR: I think that's important, too. That was Bill Fitzpatrick, District Attorney Fitzpatrick, I want to thank you again for taking the time to talk with me and wish you well.

WF: Thank you, Grant. Good to see you.

GR: You've been listening to The Campbell Conversations on WRVO Public Media, conversations in the public interest.

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Grant Reeher is Director of the Campbell Public Affairs Institute and a professor of political science at Syracuse University’s Maxwell School of Citizenship and Public Affairs. He is also creator, host and program director of “The Campbell Conversations” on WRVO, a weekly regional public affairs program featuring extended in-depth interviews with regional and national writers, politicians, activists, public officials, and business professionals.