Admission Denied for Failure to 'Address Criminal Past'
He said that his subsequent arrest for the burglary-homicide happened while he was working for the police as an informant, "assisting in an investigation of a target," implying that the target was his co-defendant in the homicide and that he was not culpable.
The applicant went on to submit a supplemental affidavit in which he explained the burglary-homicide, "[n]otably employing the passive voice," according to the First Department. He said that a gag "was placed" around the woman's mouth and that handbags "were taken." However, he said that after he and the co-defendant left, he "made up an excuse" to go back in the apartment, remove the gag and make "reasonably sure the woman was okay."
He said that his codefendant said he planned to return to the apartment to kill the victim, and that at that point, he told the police.
The First Department noted that much of the evidence contradicted the applicant's story. Most damningly, the body was found by police surveillance on Dec. 11, 1975, though the applicant claims that he told police about his codefendant's plan on Dec. 6. The autopsy of the victim showed that she was suffocated by the gag.
During his bar application process, it also emerged that the applicant had said on his law school application that he waited outside the woman's apartment while his co-defendant went inside. He admitted that this statement had been inaccurate, but again justified his behavior by saying that he was cooperating with the police.
In 1989, with his application still pending, the police who worked with him while he was an informant testified that they had specifically instructed the applicant that he could not commit any crimes, and must tell police immediately if he learned about any crime.
The applicant's defensiveness and evasiveness about his actions ultimately led the Character and Fitness Committee to deny his first two applications to the bar.
On his most recent application, he was more direct about taking responsibility. He testified that at the time of his earlier applications, he had not "forgiven [himself] for what [he] had done." He said that he was now ready to take full responsibility, though he said he was no longer "that person" who committed the crimes. He also continued to say that he went back in the apartment and removed the gag.
Tom wrote in the majority opinion that he did not believe that the applicant was truly remorseful, and therefore denied his application.
"In so doing, we take into account the applicant's seemingly unblemished personal life since his release from incarceration as well as his commendable work ethic, but we remain troubled by either his inability or his unwillingness to retreat from what seems to be a continuing defensive posture in accounting for aspects of his criminal history," Tom wrote.