Subway Murders

Two murders in New York city do not an epidemic make.  The brazen nature of these 2 killings that left victims helplessly anticipating a terrifying, painful death, and, the sheer stark horror of each victim’s final moments, will remain hauntingly with all of us, whether we utilize subways or not. For regular users of the subway, however, the thought of such an occurrence is likely their worst nightmare.

In the 1st of the 2, Naeem Davis, 30, pushed 58-year-old Ki-Suck Han, a resident of Queens, in front of an oncoming subway train.  Davis now stands charged with second-degree murder.  In the 2nd killing, Erika Menendez pushed Sunado Sen, a complete stranger, in front of an oncoming 11-car train. Both victims were killed instantly. Both, prior to their death, made futile efforts to escape the deep subway well while others looked on helplessly and motionless.  On the list of preferred ways to die, this would rank lowest on my list. On the list of uncivilized behavior, the actions of the perpetrators would rank highest.

Predictably, each perpetrator advanced an explanation for their cowardly behavior. Erika Menendez is alleged to have said, “I hate Hindus and Muslims ever since 2001 when they put down the twin towers.” Naeem Davis, working on his own version of self-defense, apparently proclaimed that his victim “attacked me first.” The first explanation will no doubt lead to a claim of insanity based on the horrors of 9/11, apparently  impacting more deeply and personally on this woman than millions of others, including those who actually lost loved ones in the 9/11 attack.  The second explanation, equally untenable and unsupportable, will nevertheless be played out in court by some energetic defense lawyer, despite its chance of success hovering somewhere between slim and nil.

The fate of the perpetrators, while important to their families, will have little or no impact on any of us. Two years from now it will be page 23 news in the New York Times. What should, however, have an impact on us is the cavalier attitude of governmental authorities accepting that nothing can be done to prevent such tragedies in the future. New York Mayor Michael Bloomberg, for example, suggested that there is “nothing anyone can do to prevent mentally ill people from pushing innocent victims in front of subway trains.”  Firstly, there is definitely no evidence that either of these perpetrators was or is mentally ill.  Indeed, our law assumes they are not mentally ill and it is they who must establish mental illness based upon evidence acceptable to a jury. They each attempted to escape, a sure sign that they each believed their acts to be morally wrong and contrary to law.

Secondly, and more importantly, lots can be done to prevent intentional killings, accidental falls and just plain mistakes that can lead to these types of horrifying deaths. Inexpensive fences could be erected with gates that open to allow all subway customers to enter only after the subway has arrived and is stationary.  Electronic sensors could be installed at all subway ramps that would automatically cut power or produce warning signals to oncoming trains.  And, of course, as with most allegedly unsolvable problems that are, in fact, solvable, additional subway personnel could be utilized to protect and supervise waiting patrons of the subway.

Mayor Bloomberg is no doubt correct when he suggests that there are many people, particularly in a city the size of New York, who are mentally ill.  All the more reason that active steps must be taken to prevent further deaths. The legal principle that we have a duty to our neighbors to protect them even from their own misfeasance encompasses the idea of forward, preventative planning.  You plan to protect persons from being victimized by any manner of bad conduct, whether fueled by insanity or not.

Frank Calabrese Sr. (a.k.a. Frankie Breeze) is Dead

The Chicago mobster and hit man who allegedly strangled his victims and then slashed their throats

35 years as a criminal defense attorney causes one to have a special interest in crime and those that commit crime.  For many years now I have followed the exploits of Frankie Breeze, the Chicago mobster and hit man, who allegedly strangled his victims and then slashed their throats.  He died on Christmas Day 2012 in a federal prison in North Carolina. While authorities are not releasing the cause of death, during his own testimony in September 2007 at the Family Secrets trial he portrayed himself as a man dying with a “sloppy” enlarged heart.  He definitely did not die of a broken heart.

While Federal authorities have often struggled to obtain evidence that leads to convictions against real mobsters, in the end, Frankie Breeze was handed to them on a silver platter. Omerta, the code of honor among mobsters that guarantees silence and a lack of cooperation with the authorities, is seldom broken.  If broken, the code calls for death to the person who breaks it.  In this case, the code was not just broken; it was shattered in a most unusual way. The key witnesses against Franie Breeze were his 2 sons, Frankie Jr. and Kurt, and his brother Nick (a.k.a. Nickie Breeze). Nickie Breeze was arguably just as dangerous as Frankie, but sensing his own demise based on the disclosures of his nephews, he cut a deal to turn state’s evidence against Frankie to save himself.

Frankie Breeze actually faced 2 criminal trials: the 1st in March 1997 and the 2nd in June 2007.  The 1st was an uneventful affair in the sense that Frankie Breeze and his 2 sons pleaded guilty to racketeering charges related to events from 1978 to 1992.  What was eventful is that while in prison his son Frankie Jr. wrote to Federal authorities offering to assist them in gathering evidence against his father.  Oddly and surprisingly, according to Federal authorities, he asked for nothing in return.  They accepted his offer and he was wired.  Frankie Jr. provided the Federal authorities with the most persuasive evidence available—audiotapes of Frankie Breeze bragging of all the murders he had committed and how he committed them.

Frankie Breeze did not, however, go down without a fight.  Despite what any objective observer would describe as overwhelming inculpatory evidence–his own voice proclaiming his guilt–he took the stand and in less than articulate fashion proclaimed, “Them is all lies”.  In a strange twist of fate, his own words figuratively strangled him and slit his throat.  The jury perhaps believed some of what he said, however, because they only convicted him of 7 of the 18 counts of murder in the indictment.  Perhaps instead their leniency in registering convictions related more to the fact that Frankie Breeze was said to have threatened the prosecutor, Markus Funk, that he was a “fucking dead man” in a way that was clearly audible to them.  They may have felt that some leniency in their decision-making was in order! Efforts by Frankie Breeze to have his convictions overturned after one of the jurors disclosed that that he had heard this threat were denied.

Here are some of the more interesting facts (or should I say allegations?) revealed during the 2007 trial:

  1. Nickie Breeze testified that his brother Frankie was the capo of the Chicago Outfit, a group of mobsters operating on the south side of Chicago that used all manner of intimidation, including extortion and murder, to collect their loan sharking debts. Frankie Breeze reported only to Angelo LaPietra (a.k.a. “The Hook”) the ultimate boss and founder of the Italian American Club;
  2. His son Kurt testified that Frankie Breeze had buried his proceeds of crime at various unknown locations around Chicago. He claimed that his father had stashed “millions” that would likely never be found. Frankie Jr. agreed testifying, “Yeah, he loved to stash cash” and, “he’d put it in 2 places in the same place so that if you found the one you were so happy you didn’t look for the other one.  And he made the one easier to find with less cash in it”;
  3. His son, Frankie Jr. described his father as “deadly” whose method of murder was strangulation but finished with his signature move, a slit throat;
  4. January 28, 2009 Judge Zagel sentenced Frankie Breeze, then 71, to life in prison describing his criminal acts as, “unspeakable”.  Despite the jury’s findings that Frankie Breeze was guilty on only 7 of the 18 alleged murders, the judge sentenced him on 13 murders.


Frankie Breeze was not treated as a ‘criminal celebrity’ in prison.  His lawyer, Joe Lopez, filed a court application in 2008 to seek improvements in his state of solitary confinement in Federal prison.  He was, according to his lawyer, treated as though he was a terrorist and subject to “Special Administrative Measures” ( SAM’s).  His lawyer claimed those measures were completely inappropriate and should be reserved only for actual terrorists. He ought not to be treated as Hannibal Lecter, the lawyer claimed, referring to the fictional psychopath in the movie Silence of the Lambs. His quarters in the prison were likened to, “an old mop room” more suitable for “a storage room”.

Frankie Breeze died in a way that TS Eliot would describe, “Not with a bang but a whimper”.

The National Rifle Association

National Rifle Association (NRA) Executive Vice President Wayne LaPierre presented a paradigm for controlling gun-toting killers in the United States that affirms an unstable, asymmetric, disproportionate and treacherous approach certain to exacerbate rather than ameliorate the epidemic of wanton violence involved in mass random shootings.

The tragic circumstances of the Sandy Hook Elementary School murders in Connecticut have served at least this one useful purpose–exposing the NRA as an organization of self-righteous, self aggrandizing “good guys” with guns, and lots of them, with the presumptuous temerity to hold themselves out as ‘the answer’ rather than part of the problem. His nationally-publicized comments* should help to galvanize the forces in favor of gun control.  (* see video below.) Assuming his comments represent the official position of the NRA, that organization has revealed itself as accommodating, protecting and defending revolutionary extremists advancing maniacal, partisan notions opposing every aspect of the American Constitution.

Abbreviated to its core, the NRA’s themes are:

  1. The greater number of guns that you have in the hands of US citizens the less crime US citizens will suffer at the hands of what Lapierre refers to as the “unknown number of genuine monsters” lurking in the country;
  2. All members of the NRA and its allies are “good guys” available in a minute’s notice to respond to and kill any “bad guys” with guns;
  3. To rely upon law enforcement to respond to emergency situations like Sandy Hook necessarily involves unnecessary delay, a delay easily eliminated by having the always available good guys of the NRA shoot and kill whoever they perceive to be the  bad guy;
  4. Membership in the NRA signifies virtuous citizenship, adherence to all rules that are good for the country and the unwavering courage of its individual members to protect not only themselves but their fellow citizens.
  5. There is no need to maintain a court system that laboriously attempts to decide guilt or innocence. The righteous members of the NRA representing “good” are quite capable of deciding those issues spontaneously.  They, not an adversarial trial system, will replace evidence, testimony, careful examination and reflection and decision-making by juries with virtuous street justice.

This is the vision of the NRA.


How To Distinguish A ‘Good Guy With a Gun’ From A ‘Bad Guy With a Gun’

Since National Rifle Association (NRA) Executive Vice President Wayne LaPierre’s nationally publicized comments after the tragic circumstances of the Sandy Hook Elementary School murders in Connecticut I have been thinking about how any one could distinguish extemporaneously a good guy with a gun from a bad guy with the gun.  I envision 2 guys, each believing fervently to be ‘good’, shooting at the other, of course, believing the other to be bad. Impromptu gunfights have that inherent aura about them, a ready, shoot, aim mentality. The other aspect about them is that they tend to be final, or should I say, fatal.

With over 300 million guns in the hands of Americans, distinguishing good guys from bad guys is admittedly a daunting task.  Perhaps, like the concept of sanity where we assume everyone is sane unless proven otherwise, we should assume everyone with a gun is a ‘good guy’ until proven otherwise. That assumption would have been deadly wrong, of course, for the perpetrators of mass killings at Columbine, Tucson AZ, Aurora CO, Newtown CT and over 60 other mass shootings in the United States since 1982.  We tend to establish ‘bad’ only after the carnage is complete. This also takes no account of approximately 33,000 deaths a year by firearms in the US.

If the murderous rampage in Newtown Connecticut could not ignite a sustained and vigorous demand by Americans for immediate, effective gun control legislation, perhaps nothing ever will. Since that December 14, 2012 catastrophe, gun sales have again skyrocketed, establishing a consistent pattern of spiked sales immediately following mass shootings.  It represents the settled, hopeless expectation of a paralyzed nation embracing the fearful philosophy of be armed or be killed. Sadly, it also represents no end in sight to the ever-increasing loss of life via firearms.  Fueled by the gun nuts that self-righteously spout indignation at any measure of gun control, and cloak themselves in incomprehensible Second Amendment rhetoric, the needless loss of life will predictably continue unabated.

Utah and Indiana already have laws that permit teachers and other school staff to carry firearms into their schools presumably to protect the students.  One of the next bizarre tragedies that we will bear witness to will be perpetrated by some angry student who overpowers an armed teacher and injures or murders innocent students and unlucky bystanders with a gun made available to him or her ostensibly for the purpose of student safety.  These imbecilic laws may not be mainstream legislation presently but incomprehensibly other similar laws are soon on their way.

The New York Times reported this week that 2 Texas legislators have proposed bills that would expand existing gun laws to allow for “deputizing school employees” with special training to carry firearms into the classroom to be used during an attack.  The NRA supports these bills, apparently envisioning the United States as an armed camp of good guys and bad guys.

Yet another problem in this uncontrolled gun-happy environment is the so-called straw purchaser of guns.  William Spengler might have been prevented from purchasing the guns that he used to kill 2 firefighters in Webster New York on Christmas Eve because of his prior conviction for murdering his elderly grandmother. Spengler had bludgeoned the old woman to death with a hammer because she would not provide him with drug money.  But his questionable mental state and prior conviction proved to be easy hurdles to avoid by simply using a straw purchaser.  He used the daughter of former neighbor.

He shopped for the guns with her, pointing out to her the very guns that he “needed”, an AR-15 semiautomatic rifle similar to the one that was used in the Newtown massacre, and a 12-gauge shotgun. He then set a fire and waited for the 1st responders from the fire department to show up. Predictably, he killed the first 2 firefighters to attend, and, wounded 2 other firefighters and an off-duty police officer on his way to work. Then he killed himself. The NRA will no doubt recommend that all firefighters now should arrive armed and ready to shoot their way into the blaze! In the badly burned remains of his home investigators found the body of the 67-year-old sister.

Is there anyone alive that can seriously argue that more guns are the answer to these senseless tragedies?  Could the framers of the Second Amendment ever have envisioned this mess? Will sensible politicians finally step up to the need for dramatic changes in gun control?  Stay tuned.