APPELLATE DIVISION: FIRST DEPARTMENT
THE PEOPLE OF THE STATE OF NEW YORK, Indictment No.
AFFIRMATION OF MICHAEL THOMAS FOIS
IN RESPONSE TO OPPOSITION OF THE
DISTRICT ATTORNEY TO MOTION TO FILE
A MEMORANDUM OF LAW AMICUS CURIA
Michael Thomas Fois, an attorney admitted to practice in front of this Court, affirms and states under penalty of perjury, the following:
- I represent the National Coalition for Sexual Freedom ("NCSF") and file this affirmation in response to the Affirmation of Assistant District Attorney Mark Dwyer, dated January 26, 1999 (the "Dwyer Aff."), submitted in opposition to the NCSF's motion for leave to file a Memorandum of Law as amicus curiae in the above-captioned matter.
- Whether due to negligence or willful misrepresentation, the District Attorney's Affirmation borders on the sanctionable. It contains numerous false statements and the District Attorney has, without using the exact words, accused the NCSF, and myself, of misrepresenting itself to this Court. The District Attorney falsely states that "the so-called NCSF is just such a phantom entity." (Dwyer Aff. ¦ 3). At one point, the District Attorney accuses the NCSF, and myself, of listing a "phoney address." (Dwyer Aff. ¦ 4). The District Attorney affirmed to this Court that "[f]rom all that appears, the NCSF might simply be one or two people who have a computer, internet access, and the capacity to create a website." (Dwyer Aff. ¦ 8). To make these statements, without any evidentiary support, should be enough to raise the ire of this Court; to do so, as the District Attorney does here, in the face of overwhelming evidence to the contrary, I believe borders on the sanctionable. As court filings are privileged, this filing provides our only redress to the District Attorney's defamation. While I cannot opine as to what degree of actual knowledge ADA Mark Dwyer had upon filing his affirmation, the Office of the District Attorney, as an institution, possessed information when it filed its affirmation that refutes many claims it subsequently made; information that clearly established that the NCSF is a recognized national not-for-profit organization with a duly constituted board and a substantial membership. Pointedly, the District Attorney had no difficulty effecting personal service upon the phantom it now asks this Court to ignore.
- I note that at no time did the District Attorney attempt to contact me, the attorney of record, regarding the status of the NCSF. One would expect that, if the District Attorney honestly doubted the validity of the NCSF, its first move would be to call the telephone number on the Notice of Motion -- my number. To contact the attorney of record is not merely common courtesy and standard practice; it is also a critical element of due diligence prior to making the type of attack the District Attorney launched in its affirmation.
ATTORNEY'S KNOWLEDGE THEREOF
- Far from a being a phantom, the NCSF consists of twenty organizations, some nearly thirty years old, whose combined membership is 6,500. When it filed the Notice of Motion, the NCSF did not believe it necessary to provide extensive background information. The NCSF, which had been in contact with the District Attorney's office regarding this case, was shocked to have its validity questioned. As its credibility, indeed its very existence, has been called into question, the NCSF now provides the Court with greater detail through this Affirmation and the attached Affidavit of NCSF Executive Director Susan Wright (the "Wright Aff."). I do not believe it is appropriate or helpful to flood this Court with affidavits at this point, but the NCSF stands willing to provide additional documentation and third party affidavits should the Court so desire. Throughout these documents this Court will note numerous contact addresses and phone numbers the Court may use to verify the information the NCSF presents
- It should be noted that the District Attorney, while arguing this Court should ignore the NCSF as a phantom, failed to disclose that it has been in contact with the NCSF on this case since August 1998, and that it had worked extensively with a NCSF board member in a criminal investigation in 1996. NCSF Executive Director Susan Wright first contacted Assistant District Attorney Martha Bashford of the sex crimes unit regarding the Jovanovic case in August 1998. ADA Bashford discussed the concerns of the NCSF with Ms. Wright again in October 1998. (Wright Aff. ¦ 2). While the concerns of the NCSF were not fully addressed, nothing in the NCSF dealings with the District Attorney's office at that time indicated that the District Attorney believed it was dealing with a "phantom" or in any way challenged the validity of the NCSF.
- ADA Bashford's name was not pulled out of hat; the NCSF contacted her because she had worked with a NCSF board member, the Gay Male S/M Activists ("GMSMA"), on a criminal investigation in 1996. (Wright Aff. ¦ 2). The mission statement of the GMSMA is annexed to the Wright Affidavit. Briefly, the GMSMA is a not-for-profit group established in 1982 to create a more supportive community for gay men involved in sadomasochism. The District Attorney's office utilized the resources of the GMSMA in identifying potential witnesses in what the New York media labled the "Dangerous Top" case. See "Dangerous Top" Unmasked: D.A. Investigates S/M Torture Charges, by Guy Trebay, Village Voice 1996, a copy of which is annexed to the Wright Affidavit. More details regarding the GMSMA and its work with the District Attorney's office can be provided if the Court so desires.
- The District Attorney was aware when it filed its affirmation that the GMSMA was a board member of the NCSF. The District Attorney admits it reviewed the NCSF's website (https://ncsfreedom.org) prior to filling its affirmation (Dwyer Aff. ¦ 7). That website clearly identifies the GMSMA as a board member of the NCSF. The NCSF website clearly lists its Board of Directors and provides the ability to contact those organizations. When the board member is an organization, as is the case with the GMSMA, the website lists the individual from that organization presently serving on the NCSF board. The website also provides the names of nine staff members of the NCSF and the ability to contact those individuals. A printout of the NCSF website is attached to this affirmation; the names of the board and staff members appear on page 3. The underlined words are "hyperlinks." With one click on a hyperlink, a browser is taken directly to an individual e-mail address, in the case of the NCSF staff members, or to another website, as in the case of the board members. To the best of my knowledge, the District Attorney made absolutely no effort to contact any of the individuals or organizations listed on the NCSF website.
- These facts of which the District Attorney's office was undoubtedly aware of prior to filing its affirmation more than refute the accusations made in that affirmation. The District Attorney cannot argue that the NCSF's credibility "would be suspect at best" (Dwyer Aff. ¦ 2) when it had in the past relied upon the credibility of one of the NCSF's board members. Nor can it can claim "that the so-called NCSF is just such a phantom entity" (Dwyer Aff. ¦ 3) after having discussions with the so-called phantom's executive director, identifying its board members, and nine of its staff members. And it is absurd to accuse the NCSF of listing "a phoney address" (Dwyer Aff. ¦ 4) when the District Attorney had no difficulty effecting personal service upon the NCSF at the address listed.
- More egregious statements, however, exists in the affirmation. The District Attorney affirmed to this Court that "[f]rom all that appears, the NCSF might simply be one or two people who have a computer, internet access, and the capacity to create a website." (Dwyer Aff. ¦ 8). The District Attorney also affirmed that the NCSF "does not have a verifiable identity." (Dwyer Aff. ¦ 8). These statements are more than misleading, they are defamatory. At the time the District Attorney made these claims, it possessed the names of all seven NCSF board members, nine staff members, and the ability to contact them. ADA Dwyer may believe the NCSF and its website to be no more than a figment of my imagination, but he had an ethical obligation to at least attempt to contact those he dismisses as phantoms before affirming to this Court that the NCSF lacks a "verifiable identity." (Dwyer Aff. ¦ 8).
- The District Attorney states that the NCSF "website makes no mention of Michael Fois or his affiliation, if any, with the NCSF." (Dwyer Aff. ¦ 7). I am at a loss as to the relevance of this information on whether the NCSF should be allowed to file an amicus brief. Had I believed my personal background to be of relevance I would have appended a resume. It is clear that the only point of this statement is to cast dispersions upon myself. While I believe ad hominem attacks normally not worthy of response, for the elucidation of the Court, I will briefly describe my background and relation to this case. I am not a member of the NCSF or of any of its member organizations and for that reason do not appear on their website. I was first contacted by the NCSF in mid 1998, having been referred to them by another attorney. I had recently left the legal department of the Federal Reserve Bank of New York, for which I had worked for seven years, the last four of which I was in the Litigation and Enforcement Division. In that capacity, I investigated banking fraud and had occasion to work with the District Attorney's office. I agreed to assist the NCSF, pro bono, because I was concerned that an overaction to a horrendous case could create bad law and reduce the civil liberties enjoyed by all New Yorkers. As has become axiomatic, hard cases make bad law. Northern securities Co. v. United States, 193 U.S. 197, 401 (1904)(Holmes, J., dissenting). My worst fears were realized when I saw the District Attorney's brief and the broadside it laid into civil liberties and consensual sexual conduct.
- Through the statements discussed above, the District Attorney denigrates the NCSF and myself and attempts to convince this Court that we have misrepresented ourselves and are really nothing more than a pair of computer hackers who lack "recognized reliability, and expertise in legal matters." (Dwyer Aff. ¦ 2). This description contradicts the information possessed by the District Attorney at the time it filed its affirmation. Were such statements made outside of a court filing, they would constitute defamation per se.
MORE THAN TWO PEOPLE WITH A COMPUTER:
VERIFICATION OF THE NCSF
- The District Attorney affirmed that "a comprehensive review of listings, phone books, and databases reveals no proof that there is such an organization as the NCSF." (Dwyer Aff. ¦ 3). We question both the scope and the effectiveness of the District Attorney's "comprehensive" review. It clearly failed to include the District Attorney's own records; if it had, it would have revealed ADA Bashford's contact with the NCSF as well as the involvement of the GMSMA in the Dangerous Top case. There simply are not that many cases dealing with sadomasochism in any context; its hard to imagine that a case less than three years old that generated substantial media coverage would fall through the cracks.
- The District Attorney's "comprehensive" review also could not have included the local media, which has reported on the NCSF. See, Silence of the lambdas, by Katie Szymanski, New York Blade News, September 4, 1998, a copy of which is annexed to the Wright Affidavit. Nor could it have included the national media, for the NCSF gave nearly 50 radio interviews in 1998. (Wright Aff. ¦ 7). And although the District Attorney found the NCSF website, it could not have searched the world wide web. Had it, it would have found reports regarding the NCSF's lobbying and the NCSF's National Survey of Violence & Discrimination Against Sexual Minorities. See, e.g., GenderTalk at http://www.gendertalk.com/GTransgr/iyf897.htm; GenderNews at http://www.ifge.org/news/1998/april/nws4298c.htm. Clearly, the thousand plus respondents to the NCSF's survey had no difficulty finding the NCSF.
- The District Attorney affirmed that "a thorough search of the relevant public records indicates that no organization named the 'National Coalition for Sexual Freedom' has ever filed for non-profit status." (Dwyer Aff. ¦ 3). The NCSF is not sure why the District Attorney failed to find the NCSF's filings. Perhaps the District Attorney only searched locally, not nationally. The NCSF's executive office is in New York, but its situs for incorporation and its not-for-profit status is in Washington DC The NCSF would have readily provided copies of the relevant documentation had the District Attorney so requested; it never did. The NCSF now provides, in the Wright Affidavit, contact information for its accountant and the attorney responsible for its incorporation and not-for-profit filings, should the Court desire confirmation of the NCSF's not-for-profit status. (Wright Aff. ¦ 2).
- The District Attorney affirmed that the address provided by the NCSF "appears to be a phoney address." (Dwyer Aff. ¦ 4). Here the District Attorney explicitly accuses the NCSF and myself of making a misrepresentation to this Court; an accusation the District Attorney bases solely on the use of a Brooklyn address with a Manhattan phone number. To the best of my knowledge, the District Attorney made no effort to contact anyone at the listed address to determine whether, in fact, it belonged to the NCSF. I am a solo practitioner and do not maintain an office; so, for the purposes of this litigation, I utilized the executive office of my client, the NCSF, which is located in Brooklyn at the address originally listed on the Notice of Motion. (Wright Aff. ¦ 2). Like many not-for-profit organizations, the executive office of the NCSF is located at the residential address of its executive director. While I lack an office, I do have a phone and that information was supplied. Hence the Manhattan telephone number listed on the Notice of Motion. The District Attorney had no difficulty effecting personal service upon the NCSF at the address it insists is phoney.
- The District Attorney notes that the zip code originally listed as part of the NCSF's address on the Notice of Motion was for lower Manhattan while the rest of the address was in Brooklyn. (Dwyer Aff. ¦ 4). The District Attorney misleadingly implies that this bolsters its "phoney address" assertion. The District Attorney, however, fails to disclose to this Court that it is aware the original zip code was a typographical error and that it was made aware of that typographical error the same day it was served the Notice of Motion. The NCSF subsequently provided the District Attorney with the correct zip code. The zip code error was discovered almost immediately after the Notice of Motion was filed -- which was the same day it was served, Friday, January 22, 1999. The District Attorney's office was informed of the error that same day; the specific individual was Carmen Mejia, tel. 335-9342. The correct zip code, the one the District Attorney used and lists in its affirmation, was provided to the District Attorney by the NCSF. The Appellant was also provided with the correct address and I personally corrected the addresses in the court filings.
- The District Attorney notes that "this is the first attempt by the NCSF to inject itself into any legal proceeding." (Dwyer Aff. ¦ 6). The point of this statement escapes me, nor do I understand the relevance of this information on whether the NCSF should be allowed to file an amicus brief. Surely the District Attorney does not mean to imply that this Court should refuse to accept the NCSF amicus brief because it is its first legal foray? Under that logic, no organization would ever be allowed to file an amicus brief, for the first one will always be rejected as being the first one! Presumably, the District Attorney means to say that since the NCSF has not sued or been sued, or prosecuted, it must not exist. I do not believe this argument worth commenting on.
- The District Attorney likewise affirmed that the NCSF "does not have a verifiable identity and, for all intents and purposes, is accountable to no one." (Dwyer Aff. ¦ 8). This statement is false. The truth is that, at best, the District Attorney chose not to verify the NCSF's identity. As described earlier, its "comprehensive review" was sorely lacking. (¦¦ 11-13, supra). One would think that, if the District Attorney truly doubted the validity of the NCSF, its first move would be to contact the attorney of record, yet no attempt was made to contact me. Nor was any attempt made to contact anyone associated with the NCSF or its member organizations. The information the District Attorney admits possessing, the information provided by the website, was more than sufficient to verify the NCSF's existence and dispel its purported fears of a couple of computer hackers perpetrating some kind of amicus shell game.. (See ¦ 7, supra). That the District Attorney chose not to verify the NCSF's existence is disheartening; that the District Attorney would affirm it could not verify the existence of the NCSF is frightening -- and false.
THE NCSF MUST BE HEARD
- Despite the District Attorney's accusations to the contrary, the NCSF is not "accountable to no one." (Dwyer Aff. ¦ 8). It is accountable to its members, its Board of Directors, and, like myself, the NCSF is accountable to this Court. We made ourselves so when we asked to be heard. But the NCSF is not accountable to the District Attorney, and that seems to be the true rationale behind the District Attorney's opposition. Had District Attorney believed the NCSF's amicus brief aided them, I doubt they would have spent three pages trying to prove the NCSF does not exist. Throughout its affirmation, the District Attorney denigrates the NCSF. The NCSF is not concerned with these insults, for it is confident this Court will see through the attacks ad hominem to the weakness of the underlying substantive position. The NCSF, however, feels it must address the District Attorney's position that the NCSF, and its members, are not worthy of being heard by this Court. Indeed, it is because prosecutors are so confident that sexual minorities can be ignored that NCSF feels it must be heard.
- The District Attorney asserts that the Notice of Motion was untimely and therefore that the brief should not be received. We disagree. The tight time frame was not created by the NCSF, nor did it work an injustice on any party. The District Attorney's brief was not filed until January 7, 1999, a mere three weeks ago. The need for an amicus brief was not clear prior to our review of the District Attorney's arguments. The NCSF could not have predicted the extreme position taken by the District Attorney in its brief, one that far exceeded any argument made at trial. The NCSF, with substantially less resources than the District Attorney's office, managed to produce and file the Notice of Motion, complete with draft amicus brief, two weeks after the District Attorney's filing. The District Attorney managed to file its opposition, which addresses legal arguments made by the NCSF, with time to spare. The time frame has not worked any unfairness to the District Attorney. The District Attorney's office was informed of NCSF's concerns nearly six months ago; it cannot now claim surprise.
- The Court should note that when the NCSF decided to file an amicus brief, it reasonably believed that oral argument would not be before mid-February. (Wright Aff. ¦ 6). When I filed the Notice of Motion on January 22, 1999, I inquired of the clerk when would be the exact date of the oral argument. I was informed that a specific date had not been set but that the case was on the calendar for the mid-February term. This was, in fact, the fourth time I was informed the oral argument was scheduled for mid-February. The first was from Ms. Wright. The second time was when I arranged for the printing of the amicus brief. Michael Burns of Counsel Press, in my presence, called the First Department's clerks' office to clarify the procedures for filing an amicus brief, including the date for oral argument. This was on January 19, 1999. Once again, I was informed that the case was on the calendar for mid-February. The third time was later that same day, when I inquired in person at the Appellate Division, First Department. I was once again informed that by the clerks that oral argument was scheduled for mid-February. I did not learn that the actual oral argument date had been set for February 2, 1999, until I received the District Attorney's affirmation.
- I recognize that it is counsel's responsibility, not that of the clerks, to ascertain the correct dates and I take full responsibility for any misunderstanding. I am, however, at a loss as to what additional steps I or the NCSF could have taken to ascertain the dates or expedite the process. I believe it would work an injustice to my client to refuse to accept its brief based on timing factors, especially since those factors did not harm any party and were not a result of any strategic decision by the NCSF.
- The District Attorney asserts "the NCSF brief has nothing to offer on the merits." (Dwyer Aff. ¦ 10). While taking no position on the guilt or innocence of the Appellant, the NCSF amicus does addresses the merits of the legal issues raised -- the Constitutional right to privacy and the consent defense. The NCSF amicus provides an in depth analysis on Constitutional law as it impacts this case, an area the District Attorney ignored in its affirmation and barely addressed in its brief. Second, only the NCSF amicus addresses the ramifications of eliminating the consent defense to assault; specifically, the criminalization of consensual conduct ranging from body piercing to contact sports, as well as sadomasochism. Third, only the NCSF amicus provides background information and statistics on sadomasochism; material gleaned form respected social scientists and published in academic journals. The NCSF takes issue with the District Attorney's claim that "the NCSF cites only two New York cases that were not addressed in the People's brief." (Dwyer Aff. ¦ 11). In fact, the NCSF cites a half dozen New York cases not cited by the District Attorney. The cases the District Attorney failed to count are in the amicus
brief section on the State Constitution, an area of law the District Attorney apparently believes not worth addressing.
THE DISTRICT ATTORNEY'S NEW ARGUMENTS
- The NCSF does not believe it would be helpful to the Court for us to engage in a point to point response of the District Attorney's response to our arguments; our legal arguments are in our brief. Notably, the District Attorney choose to spend nearly half its affirmation addressing the NCSF's "meritless" position. (Dwyer Aff. ¦¦ 10-15). In fact, the District Attorney submitted 7 pages requesting the Court not read 18! In light of the some 300 pages of briefs submitted by the District Attorney and the Appellant, the NCSF humbly requests this Court accept an additional 18 from the NCSF. The District Attorney concludes that "at bottom, the NCSF's claim is one not of law but of policy." (Dwyer Aff. ¦ 16). The NCSF believes our claim to be both of law and policy; it only ask this Court to address the law.
- The NCSF does apologize to this Court for our failure to include in parenthetical information that one of the opinions cited, Mercury Bay Boating Club Inc. v. San Diego Yacht Club, 150 A.D.2d 82 (1st Dept. 1989), aff'd, 76 N.Y.2d 256 (1990), was a concurrence by the Justice Rubin. The NCSF strongly urges that this Court read Justice Rubin's opinion, as he traces the interaction of sportsmanship and law from Pierson v. Post, 3 Caines 175 (1805), through the consent defense to the modern day. Justice Rubin's opinion forced the District Attorney to admit that, in sports at least, "the courts would be required to determine whether consent might be a valid defense [to assault]." (Dwyer Aff. ¦ 13).
- The NCSF believe it should address the one new legal citation the District Attorney added in its affirmation. In refuting the plethora of New York case law provide by the NCSF in the amicus brief, the District Attorney refers only to the Restatement (Second) Torts for the proposition that consent is not a defense to a criminal prosecution unless such a defense is provide by statute. (Dwyer Aff. ¦ 15, citing Restatement (Second) Torts ¤ 892C, cmt. a and ill.1). This "majority rule" summary of the general trends in American law is not linked by the District Attorney to the laws of the State of New York. In the face of an unbroken common law tradition, continuing to the present, the District Attorney bears the burden of proving that these decisions on the consent defense to assault have been overturned either by the courts or the legislature. The District Attorney has utterly failed to do so. They fail even to reconcile the Restatement's position with that expressed by Justice Rubin in Mercury Bay Boating Club Inc., a position the District Attorney quoted only two paragraphs earlier. (Dwyer Aff. ¦ 13).
- The District Attorney states that the NCSF's belief that the position urged by the District Attorney would result in criminalizing all sadomasochistic conduct is an "absurd mischaracterization." (Dwyer Aff. ¦ 10). The District Attorney still does not get it. Without the consent defense, the Penal Law effectively criminalized not only sadomasochism but a host of other activities, including contact sports, body piercing, even a Rabbi performing a circumcision of an adult convert to Judaism! Such a result, the NCSF argues, would violate the State Constitution. The decision as to what conduct falls within the confines of the statute is, in the first instance, made by the District Attorney in the drafting of the indictment. While an indictment, of course, is a mere accusation, on the strength of such accusations defendants are subject to the risk, exposure, and expense of trial. As the Court noted in People v. Anonymous Female, 143 Misc.2d 197 (City Ct. Buffalo 1989), even innocent defendants will be reluctant to contest ill founded accusations in the glare of publicity. The assault statute can be expanded or contracted at the District Attorney's whim - and the District Attorney's disingenuous behavior in this case strongly leads the NCSF to distrust the District Attorney's whims. The NCSF requests this Court permit the filing of an amicus brief and to consider the argument that the consent defense recognized by Justice Rubin also applies to sadomasochism.
Dated: New York, New York
February 1, 1999
MICHAEL THOMAS FOIS
Attorney for Amicus Curiae
National Coalition for Sexual Freedom
381 Manhattan Ave.
Brooklyn, New York 11211(212) 353-8984