Kristy Bower, holding a picture of her father Ronald Bower, and Jeremy Goldberg, Ronald’s Legal Aid attorney, at his Hempstead office (NYLJ/Rick Kopstein)
Two state Parole Board commissioners have slammed Attorney General Eric Schneiderman’s office for urging the panel to release a man convicted of notorious sex offenses rather than taking steps to exonerate the potentially-innocent inmate.
The criticism came at a recent parole hearing for Ronald Bower, who has spent 23 years in state prison for sex crimes in Queens and Nassau County that several investigators, and now the attorney general, do not believe he committed.
Assistant Attorney General Thomas Schellhammer, chief of Schneiderman’s two-year-old Conviction Review Bureau, wrote to the parole board on Bower’s behalf in December, stating that “it appears highly unlikely that Bower committed the crimes” for which he has been imprisoned since 1991.
Based largely on Schellhammer’s letter, which records suggest was sent at the request of the parole board, Bower was granted parole and is slated to be released in April.
But parole commissioners James Ferguson and Lisa Beth Elovich said at a Jan. 21 hearing that if Schneiderman’s office is so sure Bower is innocent, it should go to court and get the conviction thrown out, or at least work with Queens and Nassau prosecutors to exonerate him. Schneiderman’s office and the district attorney offices disagree on whether Schellhammer tried to involve the local prosecutors before approaching the Board of Parole.
In any case, Ferguson and Elovich said it was inappropriate to saddle the parole board, which lacks the authority to overturn the conviction or the resources to conduct an investigation, with releasing a man convicted of heinous sex crimes.
“I am shocked and dismayed that they have not had—let me say it politely—the fortitude to come forward and just dismiss these charges,” Ferguson said to Bower at the parole hearing, according to a transcript. “Instead, they’re trying to convince the parole board to take the responsibility for releasing you on a pretty egregious offense because they don’t have—again, I’ll say it politely—the fortitude to come forward and basically release you or dismiss the charges or petition the court for your release.”
Ferguson, a former Bronx assistant district attorney, said he also wished the prosecutors “had a little more fortitude in doing what I would perceive … as the right thing and basically taking it on the chin and making sure an injustice is not done.” He said “the district attorney who tried this case … remained silent, which is extremely disappointing.”
Elovich, a former Manhattan prosecutor and assistant attorney general, said she found it “shocking” and “very, very disturbing” that neither the attorney general nor local prosecutors have taken the matter to a judge who could exonerate Bower.
“What they are virtually doing is putting the parole board in a terrible position,” Elovich said at the hearing. “[W]e do not have the resources to retry a case. We don’t have the witnesses. We don’t have sworn witnesses. We don’t have documentation. We don’t have the evidence. We can’t cross examine people. We don’t have any of those things at our disposal. The District Attorney’s Office, however, has those resources.”
Queens and Nassau County prosecutors, alerted by the Law Journal to the attorney general’s letter and the resultant parole board’s criticisms, reacted angrily, contending that Schneiderman’s office never notified them of its intent to seek parole for Bower, a contention Schneiderman’s office vigorously disputes. They also said Schellhammer never asked to review their files before concluding the inmate is likely innocent. Officials in both offices said the only reason they didn’t respond to Schellhammer’s letter is because, until queried by the Law Journal, they had no idea the attorney general was advocating for Bower’s release.
“If, in fact, [Schellhammer] uncovered new evidence to establish defendant Bower’s innocence, I would have thought it incumbent upon him to forward that information immediately to our office and to the Nassau D.A.’s office,” Chief Assistant Queens District Attorney John Ryan said in an email Thursday afternoon to Chief Deputy Attorney General Harlan Levy. “The failure to do so leads me to believe that [Schellhammer] just elevated his own personal opinion over that of two juries, several appellate courts, [two trial level judges] and the Queens and the Nassau District Attorney’s offices. I know [Schellhammer] never looked at our file or Nassau’s.”
In an April 2012 press release touting the creation of the Conviction Review Bureau, Schneiderman pledged to partner with district attorney offices and, upon referral from local prosecutors, evaluate claims of innocence. If the bureau indeed acted without involving the district attorneys, it did not follow the protocol outlined in the press release.
On Friday, Queens District Attorney Richard Brown said in a statement that the failure of the Attorney General’s Office “to advise us or the Nassau District Attorney’s Office of their letter to the Parole Board and their continued refusal to provide our offices with any evidence whatsoever to support their conclusion is, to say the least, beyond baffling.”
Nassau County District Chief Assistant District Attorney Madeline Singas said in a letter to Levy Friday that she was “surprised to learn from a media inquiry” that the Attorney General’s Office was seeking Bower’s release on parole. While Bower’s claims of innocence have been reviewed and rejected by prior administrations, Singas said, her office is “prepared to fully re-examine this case immediately.” She said that after learning of the matter Thursday night, she reached out to the Attorney General’s office and was rebuffed.
“Thus far, when asked to provide the office with any new or exculpatory evidence in order to facilitate any appropriate release of Mr. Bower from custody, you have declined to do so,” Singas said in the letter. “Once again, I respectfully request that your office immediately share with us the evidence that supports the findings outlined in Mr. Schellhammer’s letter.”
In a statement, Singas said: “We are in the process of reviewing how the Attorney General’s Office could conclude that a convicted sex offender was wrongfully convicted without reviewing the case files of either prosecuting district attorney.”
Singas added that “Nassau and Queens County District Attorneys have exclusive authority to fully exonerate this individual, and our office has requested and hope that the Attorney General’s Office will share its findings and evidence with us so that we can fully review this case and take any appropriate action necessary.”
Schneiderman’s office on Friday insisted it had reached out to officials in both Queens and Nassau, but was ignored.
“In late 2012 and early 2013, the Attorney General’s Conviction Review Bureau reached out to the Queens and Nassau district attorneys’ offices to discuss this case,” according to Schneiderman’s spokesman, Damien LaVera. “Despite indications from both offices that they would review the case and discuss the matter with Mr. Schellhammer, neither office responded.”
Records show that the Department of Corrections and Community Supervision (DOCCS), which includes parole, wrote to Schellhammer last April. In the letter, an aide at DOCCS said that Bower’s parole hearing had been delayed because the inmate believed that the attorney general was “close to having his case reversed or overturned.” It specifically invited Schellhammer, in a letter dated April 1, 2013, to “send us any information you may have regarding the status of his case.”
Bower’s attorney, Jeremy Goldberg of the Nassau County Legal Aid Society, said any criticism of Schellhammer is wildly misguided. He said the attorney general does not have the authority to get a conviction overturned without the participation of the local prosecutor, but that Schellhammer’s probe and letter would bring an innocent man home.
“We are extremely grateful,” Goldberg said. “Without him, we aren’t even having this conversation. Even if he can go no further, he has given us a tremendous boost.”
‘Society’s Best Interests’
Schellhammer’s Dec. 30 letter to the parole board, which was copied to Goldberg but not to Brown or Nassau County District Attorney Kathleen Rice, stops short of asserting Bower’s actual innocence. Rather, it says that following a lengthy “investigation,” it appears Bower was wrongly convicted and, after more than 20 years in prison, “society’s best interests are served” by granting the inmate parole.
“We have attempted to reconstruct the events in question to the best of our ability,” Schellhammer wrote. “Unfortunately, due to the passage of time and the loss of some crucial evidence, we are unable to completely do so. Some witnesses have been uncooperative with the Conviction Review Bureau procedures. Accordingly, we are unable to fully close our investigation at this time.”
Schellhammer, a former Manhattan homicide prosecutor, noted that Bower never accepted responsibility for the crimes, adding, “I believe there is ample reason for Bower not to do so.” The bureau chief also said his unit had examined hundreds of innocence claims by convicts, and “this is the only case to date where I have asked the Parole Board to consider granting parole to an inmate.”
Bower was a security guard at Douglaston Mall in 1991 when he was arrested for a series of sexual assaults in Queens and Nassau County committed by what the tabloids referred to as the “Silver Gun Rapist,” who had accosted several women and forced them to perform oral sex at gunpoint. He generally matched the description of the suspect and was identified by victims.
But the attacks continued after Bower was arrested, until a New York City police officer was charged with similar sex crimes. The officer was acquitted, but Bower and his supporters have long theorized that the cop was responsible for all of the attacks—the ones for which Bower was convicted as well as those that took place after he was imprisoned. Goldberg unsuccessfully sought his client’s release, claiming the crimes were committed by the police officer.
Bower’s case was re-examined by a prison investigator, a Queens detective and an FBI agent, all of whom doubted his guilt. Bower also passed a lie detector exam administered by Richard Arther, a now-deceased psychologist and nationally recognized polygraph expert.
Still, Eastern District Judge Sandra Townes, after reviewing the allegedly exculpatory proof, rejected Bower’s habeas corpus petition in a lengthy 2010 decision (Bower v. Walsh, 06-cv-4851/ 5515), finding overwhelming evidence of guilt. Bower remained in prison, serving an 18-to-54 year sentence.
Schellhammer’s bureau launched its own investigation, apparently without consulting the prosecutors, and determined that Bower likely is innocent, according to his parole board letter.
The Conviction Review Bureau based its conclusion on four factors: Bower resembles “another person who committed identical crimes at the about the same time as these in question, some of which occurred after Bower was in custody”; the possibility that he was misidentified; lack of any evidence that Bower, who had no prior record, had a propensity to commit sex crimes; and the “probability” that Bower had a valid alibi for the nights in which the sexual assaults occurred.
Townes and Queens Supreme Court Justice Joseph Grosso, in a 2005 decision (NYLJ, March 21, 2005), evaluated similar or identical attacks on the evidence and concluded that the proof against Bower was sound. Both judges also noted that Bower had allegedly confessed to a jailhouse informant.
But the parole board voted unanimously to release Bower, noting his protestations of innocence. At the hearing, Ferguson suggested Schellhammer’s letter was pivotal.
Since Bower has not been exonerated, he could be on parole supervision for the rest of his life. Even at that, he cannot be released until courts in Queens and Nassau counties determine his sex offender risk level.
The Board of Examiners of Sex Offenders, which recommends risk levels based on the offense and other factors, has recommended a Level 3 designation—the highest and most restrictive level. Schellhammer, however, is expected to ask both courts to designate Bower at the lowest possible risk of recidivism, according to Goldberg. He said that under the Sex Offender Registration Act (SORA), courts have no choice but to place his client in the registry.
“SORA bars re-litigation of facts established at trial or through a plea,” said Goldberg, who has spent 20 years attempting to exonerate Bower. “We cannot go into the SORA hearing and argue that he is innocent and shouldn’t be in the system at all. The SORA court has no jurisdiction to enter such a decision.”
Bower is slated to appear in a Nassau County court on March 25 and in a Queens court on April 3 for his SORA hearings.
Bower’s daughter said in an interview that she is frustrated that her father will remain a convicted criminal and a registered sex offender but is eager for him to come home. The daughter, Kristy Bower, enlisted in the U.S. Marine Corps with her father’s encouragement and is now a paralegal for the City of New York. The 27-year-old described fond, but few, childhood recollections of her father, whose innocence she never doubted.
“He used to take me to Gold’s Gym and give me ice cream bars while he worked out,” she recalled. “But he left when I was four, so there aren’t many memories.”
At his parole hearing, Bower said he was a broken man, repeated that he wanted to go home and insisted he “didn’t do nothing to nobody.”
“I’ve been crying almost every day,” Bower said, according to a transcript of his hearing. “I’m a basket case. I’ve been so broken by this 23 years in prison for something I did not do and knowing that I have a chance to get out now, everything is hitting me all at once, and I just want to go home to my family.”
For Goldberg, Bower’s release is only half the battle. The attorney who has committed much of his professional life to Bower said he would not rest until his client is fully exonerated and freed from both the yoke of parole and the stigma of a registered sex offender.
“As difficult and as frustrating as it is to stay in the fight, it is easier than to walk away from it because if I do that it’ll eat at me for the rest of my life,” Goldberg said. “I am not surrendering on this. I am not going to give it up. As long as I’ve got a working brain and a breath in my body, I will be trying to find some way to get this rectified.”