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Tom Monaghan, a defense lawyer, is passionate not only about his clients but also about free speech and due process (fairness). Those are the foundations of our system of justice.
No prosecutor has ever come close to intimidating Monaghan, but the reverse is sometimes true. And if he feels his client is being unjustly treated by a judge, he speaks uprepeatedlyeven to the point of risking a citation for contempt of court. Monaghan is the dauntless attorney for Thomas F. McGowan, who was arrested by three cops carrying 9mm guns in June of this year. They were acting on a criminal harassment complaint by WABC radio talk show hosts Steve Malzberg and Sean Hannity.
McGowan, a continual listener to talk radio stations, had sent WABCand those two hostsa large number of critical faxes. The language was steamy, but no more so than the invective customarily hurled at indignant callers by many on-air talk show hostsincluding Malzberg and Hannity.
These programs are popular because they are entertaining, and a large part of the entertainment is the blustering exchanges between the hosts and the listeners. Accordingly, WABC radio constantly invites listeners to call in or fax their views.
Nonetheless, McGowan was imprisoned for nine hours at Midtown South Precinct #14 and was charged with two counts of aggravated harassment. Malzberg and Hannity claimed that he had threatened them. And, Hannity added in comments on the air, his family had also been threatened. But he never said by whom.
On October 27, nearly four months after Thomas McGowan was busted, District Attorney Robert Morgenthau's office dismissed all charges against him.
His client "seeks compensatory and punitive damages to compensate for the pain, suffering, and public humiliation he endured while being arrested, falsely imprisoned, and maliciously prosecuted."
Monaghan is preparing to serve court papers on Walt Disney Productions; Disney/ABC, Inc.; WABC program director Phil Boyce; station manager Tim McCarthy; Sean Hannity; Steve Malzberg; arresting NYPD detective Ken Cardona; and the City of New York.
In telling criminal court judge Gabriel Gorenstein that the case against McGowan was being dropped, Assistant District Attorney Chad Shoquistin language reminiscent of the White House spin factorysaid:
"The position of the New York City Police Department and the district attorney's office is that the defendant did commit the crime with which he's charged. In addition, there were threats madenot reflected in the criminal complaint. However, after extensive investigation, the People decided that based on all of the facts, the prosecution is not warranted."
I have seen the additional faxes and they were not produced in evidence because they were not evidence. They contained no true threats. Those documents were sent to me by a person within the bowels of WABC who insists on anonymity.
Now that WABC and D.A. Robert Morgenthau have folded, Tom McGowan is suing each of the above-named defendants for false arrest and imprisonment, malicious prosecution, conspiracy to violate civil and constitutional rights, and abuse of process.
The last count is included because "although Plaintiff had committed no crime, defendants all individually and acting in concert, aiding and abetting the other, unlawfully caused Plaintiff to be arrested and incarcerated . . . without an arrest warrant and/or probable cause."
On each cause of action, each defendant is being asked to pay compensatory damages of $500,000 and $1 million in punitive damages. Also claimed, of course, are "costs, disbursements, and reasonable attorney fees."
If it weren't for Tom Monaghan's determination and Tom McGowan's insistence on proving his innocence, the shoddiness of this case might never have been fully revealed.
None of the faxes actually in evidenceor the others never produced in courtcame anywhere near the standard for "true threats" established in the 1989 New York State Court of Appeals decision People v. Dietze, which bears directly on this case.
New York State's highest court ruled that for Thomas McGowan to have been lawfully arrested for aggravated harassment, there had to be specific and immediate threats in the faxes he sent.
As Ron Kuby, himself a fearless defense attorney, and easily the most broadly knowledgeable talk show host on WABC itself, told me:
"I've read hundreds of McGowan's faxes to the station, and clearly none of them could even remotely pass the test under theDietze decision [emphasis added]."
As for the additional faxed threats alluded to by another assistant district attorney, Lisa Bleich, one of them isn't even addressed to Malzberg or Hannity. And it too is not in the least threatening.
I believe that Sean Hannity joined Steve Malzberg in his criminal complaint both to support a colleague and because of other, unsigned threats against himself, his wife, and his new childwhich did not come from Thomas McGowan, who always signed his faxes. Hannity had no proof those faxes were in any way connected to McGowan.
Both Hannity and Malzberg should have apologized to McGowan long ago. WABC's program director, Phil Boycewho keeps insisting he had no connection with the criminal complaint against McGowanhas not yet, so far as I know, allowed any mention on the air of the dismissal of the criminal complaint against McGowan.
If invited, I would be delighted to speak again on WABC about the injustice to Thomas McGowan as well as the station's violation of two-way free speech.