Given how much news has occurred since early October, one could be forgiven for nearly forgetting that Rochester’s mayor is under indictment on two felony charges. Her next court date is scheduled for Jan. 12, which feels like a political lifetime from now, especially in the shadow of a presidential election that could be headed for its own courtroom drama.
Yet there is likely to be much going on in the coming weeks and months with the mayor’s case. The action will happen behind closed doors and probably without any resulting news coverage, but it will shape the ultimate outcome for Lovely Warren and the city of Rochester.
Despite the non-public nature of the next stages of this case, high-profile prosecutions like this one tend to follow certain patterns. And there are already many tea leaves to read based on what’s publicly known. Drawing on my time as a prosecutor and watching similar cases closely, I’ll put forth some educated speculation about what will happen next and the underlying dynamics of this case.
From Sandra Doorley’s perspective
Despite what many might think, it’s hard to imagine that Monroe County District Attorney Sandra Doorley really relishes having to prosecute this case. There is very little upside for her, yet many political dangers.
Unlike federal prosecutors or the New York attorney general, a local district attorney’s office has much less discretion as to which cases it will pursue. In this instance, it was determined in 2018 between the district attorney’s office and the state Board of Elections that the Monroe County DA’s office would have jurisdiction in this case if evidence of wrongdoing was found.
After considerable investigation, the Division of Election Law Enforcement (of the state Board of Elections) delivered a 35-page report to Doorley’s office in March 2020. While that report has not been made public, parts of it have been leaked to the media. The report concluded that there was “considerable evidence” that Warren and others “engaged in a scheme to evade contribution limits” and to “accept excess contributions and make expenditures that were not reported as contributions in-kind to Lovely Warren.” The report also cited additional evidence in the form of committee records, vendor records and bank records that supported these conclusions.
Unless Doorley really disagreed with the Division of Election Law Enforcement about the strength of the evidence, she essentially had little choice but to present that evidence to a grand jury. But if she were eager about pursuing this case, that would have been obvious in her press conference when she announced the indictment, or the press release that accompanied it. Yet there was no grandstanding or moralizing in Doorley’s announcement. She was professional, fact-based and cautious.
That is because much can go wrong for her in the course of this case. Even if Warren pleads guilty or is found guilty at trial, there will be some local voters who will forever view this as a partisan prosecution, and will believe Doorley politicized her office. Some other voters will view this in more sinister terms: that it’s another example of a white law enforcement official abusing her power and trying to take down a popular African-American leader. Examples of these opinions already are plentiful on social media.
It also is worth noting that this may not be an easy case for Doorley’s office to win, even if the overall evidence turns out to be strong. Coordinating the activities of multiple political action committees to get around some arbitrarily determined campaign contribution limits is not a particularly riveting or easily understandable crime.
It is easy to imagine one or more jurors in this case believing at least one of the following things: a) this is a victimless crime and Warren didn’t personally pocket any money from what happened here; b) this “crime” did not alter the course of Warren’s re-election, which would have happened either way; c) this is a very “technical” violation that doesn’t deserve to be labeled a crime in the first place (“just make her pay a fine”); d) Warren doesn’t deserve a criminal conviction or to risk jail time over something “minor” like this; e) “I don’t like the idea of a Republican prosecutor going after a duly elected Democrat leader through the courts; f) “I don’t like the racial undertones of this case”; or g) “there are many complicated details in this case, so I’m not comfortable convicting.”
And if one or more jurors gets such thoughts, the result would be a hung jury, which would certainly look bad for Doorley. It is also quite imaginable that multiple jurors lock on to one or more of the views described above, and that their intransigence could sway the rest of the jury to find Warren not guilty.
The risk of that outcome might be relatively low, but it represents an unneeded and dangerous one for Doorley. From her perspective, the best outcome is one where Warren either resigns as mayor or at least agrees not to run for re-election in 2021, coupled with some public admission of wrongdoing that leaves little doubt that the prosecution was warranted in the first place. Doorley does not need for Warren to be convicted of a felony, or to lose her pension or her law license, in order to claim success. Which is why I think that Doorley is likely to offer Warren a fair deal to plead guilty to a non-felony, and one that will minimize risk to her law license and her pension, as long as Warren resigns or withdraws from her re-election race.
From Lovely Warren’s perspective
Despite all the reasons that a trial in this case could result in a hung jury (which could still mean a re-trial) or an acquittal, Warren knows that prosecutions against politicians generally do not end well for the politicians. Many local and regional examples can be found (George Maziarz, Adam McFadden, Chris Collins, Joe Errigo, Bill Nojay, Dean Skelos, Sheldon Silver, Alan Hevesi, etc.).
Judging by history and the little we know about the evidence so far, I believe it is safe to assume that Warren faces some substantial chance of being found guilty of one or more felonies after trial. That risk should be viewed by Warren as too much to bear.
A felony conviction in this case would mean removal from office and the possibility of losing her pension and/or her law license, though it seems to me that Warren would have some legitimate arguments on why the pension forfeiture laws should not apply in this case. She also faces the theoretical risk of incarceration. And even though I think Doorley would likely offer Warren a non-incarceratory plea deal before trial, there is no guarantee that this outcome will be available after trial. Perhaps ironically, the longer that Warren is seen as “dragging out” this process—and the more that evidence against her is made public during a trial—the larger the risk grows that a sentencing judge would feel the need to incarcerate her for at least some time period after a guilty verdict at trial. Otherwise, that judge risks looking like he or she is weak on punishing “corrupt politicians.”
With regard to the potential value of Warren’s pension, records from seethroughny.net and otherwise indicate that Warren is already eligible for a partial pension. Based on her professional biography, she also appears to have either already crossed the 20-year mark with regard to pension service credits, or that she could get there in the next few years (she can gain more pension credits with some other form of government service once she lays low for a while after this case).
Based on her published salary history and with 20 years of service, Warren would be eligible for approximately $60,000 a year beginning at age 62. She could also start drawing a reduced pension at age 55. But that $60,000 annual figure can go up substantially if she is able to collect more pension credits that take her beyond 20 years (for each additional year of service beyond 20, she may be adding as much as $3,000 a year to her pension payout). But even if her benefit doesn’t get above $60,000 a year, that’s quite a lot when you consider that she will likely be collecting that for 20 to 30 years.
Additionally, Warren would have a much easier time working in the government sector again at some point—or leveraging her law license (and her personal popularity) by forming or joining a law practice—if she avoided a felony conviction and the loss of her law license.
Warren is still quite young and needs to provide for her family. If she goes away quietly with a slap on the wrist and no felony conviction, she can make a comfortable living and perhaps make a political comeback. Voters often give second chances, especially when the past crime is obscure and forgettable.
It should also be noted that Doorley’s case will get stronger if one or more of Warren’s co-defendants flips on her. And Doorley’s team appears to be already exploring a plea deal with the co-defendants by which they will get lighter sentences in exchange for providing evidence and testimony against Warren. At her news conference announcing the mayor’s indictment, Doorley was asked whether Warren’s co-defendants—Rochester Finance Director Rosalind Brooks-Harris and Albert Jones Jr.—were cooperating with prosecutors. Doorley replied: “As a matter of fact, they have (been cooperative). They spoke to investigators from the district attorney’s office regarding these allegations before the case went into grand jury.”
So, Warren might be well-advised to reach her own plea deal earlier, especially if Doorley’s office offers an opportunity to plead to a misdemeanor (i.e., a non-felony) or a criminal violation that minimizes the risks to Warren’s pension and law license.
Frankly, from a risk-mitigation perspective, both Doorley and Warren would be reasonable in believing that such a deal is the best option, and it would allow the citizens of Rochester to move forward without the cloud that this case creates over its mayor.
At some point we will see if reason prevails.
Rochester Beacon publisher Alex Zapesochny was a prosecutor in the Bronx County district attorney’s office from 1997-2000.