Sending Messages: Conjecture and Empty Rhetoric Isn’t Proof

When New York County Acting Supreme Court Justice Edward McLaughlin sentenced two Testwell Lab executives, V. Reddy Kancharla and Vincent Barone, to seven and five years respectively, he meant to send a message :

As defendants point out, the trial court apparently felt that such sentences were warranted in order to “send a message” to “‘the construction industry in New York City [which] over the decades has been rife with corruption.’”

In three opinions running an astounding 299 pages,  thoughtfully parsed by former NYLJ reporter Dan Wise who now has his own blog, WiseLawNY, the First Department sent a message of its own:

In reversing the two men’s conviction for enterprise corruption in an opinion written by Justice James M. Catterson, four judges characterized the prosecution’s case as based upon “pure conjecture bolstered by empty rhetoric.”

The two were convicted of faking concrete tests used in huge construction projects.

Both men were convicted of manipulating data that skewed test results for concrete used at major New York City projects such as the construction of Yankee Stadium, the Freedom Tower, the Second Avenue subway line and Jet Blue facilities at JFK Airport. In all, the city ended up retesting concrete used in more than 100 projects over a decade.

And yet, in Justice Catterson’s final opinion as an appellate judge, having been defeated in the last election, he wrote:

Catterson also chastised the office for making “significant misrepresentations of the record” in its brief and at oral argument as it sought “to sidestep the absence of proof on the criminal enterprise issue.”

“Simply put,” Catterson wrote, “the People failed to introduce any evidence of a leadership structure, overall planning of the criminal enterprise, or any communications between Kancharla, Barone and any of the Testwell employees in furtherance of the criminal enterprise.”

New York has a long tradition of issues with concrete and construction, going back as far as the Tweed Courthouse.  It could be well argued that not a significant structure in New York City was built without some element of corruption involved.  Indeed, to a large extent, it’s been institutionalized in union contracts in many cases, making it part of the essence of large construction projects whether anyone likes it or not. 

But what it does not necessarily mean is that enterprises engaged in construction are corrupt, or that the individuals running those enterprises hold clandestine meetings in the dark of night to scheme about how to rip off the City or landowners. 

The requirements of contracts for major construction projects are onerous, including testing of materials to assure that they meet the specifications.  The entities who build skyscrapers and stadiums and public buildings aren’t small mom and pop shops, but large decentralized corporations with various departments and many employees, all of which have jobs to do that are distinct from other people’s jobs. Ultimately, the job was to get a structure built, properly and on time.

Testwell Laboratories role was to perform the tests needed to show that materials met the requirements.

Testwell was considered the preeminent material testing laboratory in the New York area. Both public and private builders relied on its test reports and certifications about the strength of concrete and the quality of steel in structures built in the city. 

According to witnesses inside Testwell, a variety of tests weren’t done the way they were supposed to, and there doesn’t appear to be any question of that.  But prosecuting the little people, the ones who faked results or used unapproved methods to get their job done, isn’t satisfying. Instead, the District Attorney went to the top of Testwell, the CEO and Vice President of Engineering.  The problem is that there was no evidence that either knew about the testing problems, encourage or enabled the falsifications.

What happened here, as often happens in trying to climb the ladder of a corporate structure, is that otherwise ordinary or common facts, here the Testwell website and computer system, are reinvented rhetorically to appear nefarious, from which the prosecution can argue that it’s done for malevolent purposes.

While there was testimony that Testwell’s computer system did not allow one to determine who had altered data, there was no evidence of any kind that the computer system was purposefully programmed to “hide” data tampering or that Kancharla had any role in the programming. We agree with Kancharla that it is one thing to draw inferences from the facts and another thing for the People to simply invent facts…

A computer system that was created in a way that served to provide the proof in the fashion the prosecution desired or thought it should was magically converted into a mechanism to conceal.  Even more peculiar, the Testwell website, which was apparently out of date as are so many, offered another opportunity for rhetorical “proof”:

The People also assert that Testwell’s corporate titles and responsibilities were kept vague to “camouflage [its] crimes and blur responsibility for them.” The People contend that Edward Porter’s title “was published on Testwell’s website as assistant laboratory manager despite the fact that he had nothing to do with the lab.” However, the People put forth no evidence that any engineer doing business with Testwell was deceived by Porter’s title or that anyone even considered the issue.

The post-hoc effort to rationalize a job title by rhetorical flourish, “camouflage” and “blur,” doesn’t make it so, but rather demonstrates how taking otherwise innocent, indeed meaningless, facts and through the use of artful language taint them and elevate them to inferential proof of wrongdoing.

And the most absurd contention was the use of the word “we” in company correspondence, suggesting that it meant personal involvement by top management in every decision, only to later be used to argue a diffusion of responsibility.  That’s how corporate people write letters, to promote the brand and service, and not in anticipation of a prosecutor putting every word under a microscope years later. It’s just silly.

Justice Catterson’s opinion is remarkable for not only seeing through the trick the prosecution tried to played on the court, but for calling it out in no uncertain terms.  The extrapolation of utterly ordinary practice into part of a scheme to commit enterprise corruption by tainting innocent conduct with words to convey criminal purpose pervades the trial process.  It’s not the fact of what happened, but the characterization of conduct to give the appearance of wrongdoing even though a defendant did nothing wrong.

And Justice Catterson said so.  It’s about time that the court focused far harder on what actually happened than the words used to describe. 

2 comments on “Sending Messages: Conjecture and Empty Rhetoric Isn’t Proof

  1. Erika

    But, but, its good enough for Jack McCoy!

    You mean to tell me that real New York courts don’t accept conjecture and empty rhetoric as being good enough evidence for them like the ones on Law & Order?

    i’m totally disillusioned that television would lie like that – next thing you know you will you be telling me that the My Little Ponies are not actually real ponies 😉

  2. SHG

    Now I feel badly for mussing up the illusion.  But yes, they are real ponies, and friendship is magic.

Comments are closed.