One Police Plaza

New Jersey Judge or Jersey Pol?

March 3, 2014

The reaction of the city’s mainstream media is the only thing wackier than U.S. District Court Judge William J. Martini’s ruling last week that the NYPD’s widespread spying on New Jersey Muslims did not violate their civil rights. Further, he ruled, whatever harm Muslims suffered was caused by the Associated Press, whose series on the department’s spying received the Pulitzer Prize.

“Ray Kelly was right,” headlined a Wall Street Journal editorial, of the former NYPD commissioner. “Put an asterisk next to the prizes for The Associated Press.”

The Journal’s downscale cousin, the New York Post, agreed in similar language (“Ray was right”),suggesting that “Perhaps the AP should return the prize.”

Or as the Post’s pale imitation these days, the Daily News, put it: “For good measure, Martini blamed AP, not the police, for ruffling feelings.”

Martini dismissed a lawsuit against the NYPD on behalf of eight Muslims who claimed the surveillance programs were unconstitutional, justifying the spying on Muslim schools, mosques, restaurants and so-called “hot spots.” In his decision, Martini said that “The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself.”

Their motive, he wrote, “was not solely to discriminate against Muslims but rather to find Muslim terrorists hiding among ordinary, law-abiding Muslims.”

Of The AP, Martini wrote: “The Associated Press covertly obtained the materials and published them without authorization. None of the plaintiffs’ injuries arose until after the Associated Press released un-redacted confidential NYPD documents and articles expressing its own interpretation of those documents.

“Nowhere do plaintiffs allege that they suffered harm before the unauthorized release of the documents by the Associated Press.”

To put a fine point on his logic, it was The AP’s reporting on the spying — not the spying itself — that caused harm to Muslims. He seemed to be saying that Muslims couldn't be harmed if they didn't know the spying was occurring.

Martini, however, did not say that none of the NYPD’s spying efforts was prompted by a specific allegation of a crime. Nor did he say that the NYPD operated with no accountability to anyone. Perhaps most importantly, Martini failed to say that the NYPD's spying produced not a single arrest.

So who is this great legal mind and what were his bona fides before his appointment as a federal judge by President George W. Bush — hardly an avatar of sound judicial appointments. (Recall Bush’s nomination of Harriet Miers for the Supreme Court in 2005 to replace a retiring Sandra Day O’Connor. Miers’s qualifications were so lacking that opposition from Bush’s Republican allies forced him to withdraw her nomination.)

Martini is a Jersey pol. He served a year as a Hudson County prosecutor before becoming an assistant U.S attorney, and later going into private practice. In 1990, he was elected to the Clifton, N.J., city council. Two years later, he joined the Passaic County Board of Chosen Freeholders. He won election as a Republican to the 8th Congressional District, serving a term before being defeated in a re-election bid. His last job before Bush appointed him to the federal bench in 2002 was as a commissioner of the now-beleaguered Port Authority.

While on the bench, Martini hit a daily double on June 15, 2012, when the Court of Appeals removed him from two cases on the same day, both for judicial bias.

Calling removal “an extraordinary remedy that should seldom be employed,” an appeals court panel concluded that during the trial of a prominent defense attorney accused of orchestrating the murder of a government informant Martini’s rulings and conduct raised questions of his bias toward the defendant.

Martini, the panel wrote, “usurped the jury’s role” by excluding some testimony from the trial in a ruling that “cannot be reconciled with a sound exercise of discretion.”

In the second case, which involved heroin and gun-possession charges, a separate appeals court panel concluded that Martini had undermined the prosecutor’s professionalism and questioned the integrity of the government.

When “a judge openly questions the integrity of the government’s evidence collection practices, undermines the professionalism of the prosecutor, and accuses the government of prosecuting in bad faith — all without evidence of governmental misconduct — a reasonable observer could very well find neutrality wanting in the proceedings,” the panel wrote.

Baher Azmy, the legal director at the Center for Constitutional Rights, which was co-counsel representing the Muslim plaintiffs, said he would appeal Martini’s decision.

Let’s see what the Journal, the Post and the News say if Martini’s decision is overturned.

THE PIMENTEL PLEA. What to make of the guilty plea by Jose Pimentel, a so-called “lone wolf” terrorist, after his attorney had said just two weeks before his trial that she planned a strong entrapment defense?

Pimentel, who will receive a 16-year prison term when he is sentenced later this month, is the third lone-wolf terrorism case that the NYPD brought to prosecutors, resulting in a conviction, without the assistance of the FBI.

On the surface, his plea appears to further vindicate former NYPD commissioner Ray Kelly and his aggressive anti-terrorism-fighting stance.

As the Daily News chortled: “When the NYPD busted Jose Pimentel on a terrorism charge in 2011, FBI agents scoffed anonymously that the case did not meet their high standards. Who’s laughing now?”

But these lone-wolf terrorism cases are more complicated than that.

Each was announced with great public-relations fanfare. Each defendant turned out to be someone with either emotional or mental problems.

Matin Siraj was convicted by a Brooklyn jury of conspiring to blow up the Herald Square subway station on the eve of the Republican National Convention at Madison Square Garden in 2004. He had an I.Q. considered borderline-retarded.

We learned during his trial that the police paid $100,000 to the informant who provided the evidence against him. His co-conspirator, who testified against him, had recently been released from a mental institution.

Siraj’s entrapment defense failed, and he drew a 30-year sentence.

Last year, Ahmed Ferhani and Mohamed Mamdouh pleaded guilty to plotting to blow up a synagogue. The FBI had refused to take the case, concerned with the credibility of the NYPD’s undercover who had developed the evidence against the two men.

Ferhani’s attorneys claimed that he had been in and out of mental hospitals for years. They also said they would use an entrapment defense.

Instead, both Ferhani and Mamdouh pleaded guilty. Ferhani was sentenced to 10 years, Mamdouh to five.

A Dominican immigrant, whom the NYPD charged was an al Qaeda adherent preparing to make bombs in his mother’s Washington Heights apartment, Pimentel has been described as broke, unemployed, and also beset with mental problems.

Sources said the FBI refused to take the case because the bureau did not trust the NYPD informant who provided the evidence against him.

Pimentel’s attorney, Lori Cohen, told this reporter just two weeks before his trial that she planned a strong entrapment defense.

Yet in the end, she accepted a plea. No doubt, like Ferhani’s and Mamdouh’s attorneys, she realized, as Siraj had learned the hard way, that when it comes to terrorism entrapment, New York City juries aren’t interested.