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The High Bar
For Redemption

Inside One Felon's 12-Year Campaign
To Practice Law in New York State;
From Quaaludes to Faulkner
By PAUL DAVIES
March 8, 2007
The Wall Street Journal

In the 1980s, Neal Wiesner was a high-school dropout making a living peddling sham prescriptions for Quaaludes on Manhattan's nightclub scene. One night, while high on speed, he held an ex-girlfriend at gunpoint and fired several shots her way after she escaped through a window.

Convicted in a New York court of attempted murder, he received a sentence of 12 to 25 years. He was released just five years later after successfully representing himself on appeal, arguing he was unjustly barred from representing himself at his original trial. In 1994, he earned a law degree.

Since then, Mr. Wiesner has been battling for the right to practice law professionally in New York.

Mr. Wiesner has cited his undergraduate degree and law degree from state-funded universities, internships with a state judge and a district attorney, and a recommendation from a retired federal judge. New York state has refused to admit him to the bar nine times because of his prison record, the nature of his crime and what it considers his lack of remorse.

Mr. Wiesner's campaign brings into sharp relief a central question of criminal justice: What is redemption?

"I had some serious offenses 23 years ago, and there's no taking it back," says Mr. Wiesner, 53 years old. "Who among us would like to go through life being judged every day by our worst act?"

KEY DOCUMENTS
 
[Key Documents]
Read the letters written on behalf of Neal Wiesner by U.S. District Judge Goettel and retired New York State Supreme Court Appellate Justice John Carro.
A New York bar subcommittee recommended by a vote of 2-1 that he be denied admission. Read the majority recommendation his application be rejected and the sole dissent.
He was admitted to the New Jersey bar after a unanimous committee recommendation. Read that report.

Bar admission standards vary from state to state, and can be applied differently within the same state. The issue gets especially thorny with ex-convicts. Indiana, Mississippi, Missouri, Oregon and Texas prohibit felons from practicing law. Alabama allows felons to practice only if they've received a full pardon. Like most states, New York requires bar applicants to demonstrate good "character and fitness." Those standards evolve continuously.

In 1875, the Wisconsin Supreme Court denied Lavinia Goodell admission because practicing law was "unfit for the female character." In 1957, the U.S. Supreme Court ruled that state rules must have a rational connection to the ability to practice law, overturning New Mexico's decision to reject a Communist Party member. In 1979, the Virginia Supreme Court said the state couldn't reject an attorney merely because she lived with a man out of wedlock. In 1999, the Illinois Supreme Court upheld the state's rejection of a white supremacist.

The American Bar Association in 1987 added a provision to its guidelines, which many states follow: "Unlawful conduct" should require "further inquiry," not automatic disqualification. Factors to consider: seriousness of the crime, age at the time, candor and evidence of rehabilitation.

[Photo]
Neal Wiesner

Mr. Wiesner blames his troubles on drugs. He grew up in Staten Island and began using marijuana at 12, eventually dropping out of high school. Inspired by Woody Guthrie's autobiography "Bound for Glory" and Jack Kerouac's "On the Road," he says he left home in 1968 at 15.

He recalls living a hobo life, hanging out in New York's run-down Bowery neighborhood. He eventually rented a house in Staten Island and made money giving banjo lessons. He says he took community-college courses but didn't graduate.

At age 25, Mr. Wiesner says he and a doctor friend started selling fraudulent prescriptions for Quaaludes, a sedative, to lawyers, models and Wall Streeters. He ran the business side of the clinics while various doctors wrote prescriptions. The operation grew to include several "clinics" and grossed tens of thousands of dollars a week, he says. Mr. Wiesner says he enjoyed the high life -- nightclubbing by limo, abusing drugs, sipping martinis and hosting all-night parties.

He dated multiple women, but eventually settled on Cynthia Pearce, who Mr. Wiesner says answered an ad he placed in the Village Voice seeking an administrative assistant. They lived together for a year or so.

In mid-1982, federal agents raided his clinics and shut them down. Informed that he faced indictment, Mr. Wiesner says he became depressed and intensified his drug habit.

Mr. Wiesner and Ms. Pearce split up in March 1983, he says. In July, he began making repeated attempts to see her. One evening, she agreed to meet him at a train station. There, Mr. Wiesner brandished a Walther semiautomatic pistol and forced Ms. Pearce to her apartment, according to court records and Mr. Wiesner.

After seven hours, according to court records, Ms. Pearce jumped from her second-floor window, and fractured both heels on impact. Mr. Wiesner fired five or six shots in her direction; none hit her. Ms. Pearce says in an interview she feared for her life after Mr. Wiesner said he planned to kill her. Two months later, the state indicted Mr. Wiesner for attempted murder, reckless endangerment, burglary, unlawful imprisonment and criminal possession and use of a firearm.

Mr. Wiesner says he sent repeated letters to various judges expressing displeasure with his appointed legal counsel. At a November 1984 hearing, one attorney asked to be taken off the case because Mr. Wiesner insisted on recording their conversations and interrupted her in court.

Mr. Wiesner knows "precisely what he is doing in regard to this case, although he is not a lawyer," the lawyer told Justice Thomas Sullivan, court records show. Justice Sullivan replaced the lawyer with another, Felix Gilroy of Staten Island.

The following month, a federal grand jury indicted Mr. Wiesner on Quaalude possession, distribution and conspiracy charges.

MORE DOCUMENTS
 
In late December, Mr. Wiesner was ordered to file papers arguing why his admission to the New York federal court should not be revoked. Read that order.
In late January, U.S. District Judge Harold Baer rejected Mr. Wiesner's suit against the state judges who have denied his bar admission. Read Judge Baer's decision.
Last month, Mr. Wiesner formally asked the Manhattan federal court not to revoke his admission there. Read that brief.

When his state trial began on Jan. 2, 1985, he told the judge he'd had only one 10-minute telephone conversation with Mr. Gilroy. He asked the judge to replace him with the attorney handling his federal drug case, which was proceeding simultaneously. Justice Sullivan refused.

"In that case, your honor, I don't feel I can go ahead with Mr. Gilroy, and I will have to go ahead pro se if you insist," Mr. Wiesner said, invoking the Latin term used by lawyers to mean that a party is representing himself.

"You may have great intellectual capabilities," Justice Sullivan responded, "but you do not have the necessary background and training and experience and understanding, let alone the objectivity, that is necessary for an attorney to do a job properly."

After Mr. Gilroy started cross-examining the first witness, Mr. Wiesner ordered him not to question or call any witnesses or give a closing argument. At the trial's end, Mr. Gilroy asked for a mistrial, arguing that Mr. Wiesner should have been allowed to represent himself. Justice Sullivan denied the motion.

The jury convicted him on all charges except reckless endangerment.

In federal court, Mr. Wiesner began to see a way out of his predicament. He says U.S. District Judge Gerard Goettel, of New York's Southern District, treated him with respect. The two men struck up a correspondence that continues today. In 2000, Mr. Wiesner sent the judge a book of Robert Frost poems. Three years later, around Christmas, he sent a fruit basket and received a handwritten letter in reply.

"I felt worthless walking into his court, like I was an animal" Mr. Wiesner recalls. "But he didn't treat me that way. He listened to me and made it clear that I had rights."

With prison life came sobriety, according to a psychiatric evaluation Mr. Wiesner commissioned for his bar applications. He says he read almost a book a day and paged through legal journals. He worked on his own and other inmates' appeals, earning the nickname "Nealie Smarts," he recalls.

Mr. Wiesner was permitted to represent himself for much of the federal proceedings. He questioned witnesses at pretrial hearings. He successfully argued to suppress damaging testimony. Judge Goettel quipped in court that the defendant "wasn't pro se -- he was semi-pro se," Mr. Wiesner recalls. The judge, who is now retired, doesn't recall the remark but says it sounds like something he would say.

After almost two years of legal wrangling, federal prosecutors agreed to a plea deal under which Mr. Wiesner was sentenced to the roughly three years he had already served.

On appeal of the state drug conviction, Mr. Wiesner mixed legalese with plain language: "The court recognized my waiver of counsel and stopped its imposition but did not conterminously allow my pro se rights to fructify," he wrote in a 37-page brief. "I do not see how this court could snake a decision around these facts in order to sustain; I hope I'm right."

U.S. District Judge Raymond J. Dearie granted Mr. Wiesner's appeal in December 1989. The defendant was convicted "without any defense at all, a constitutionally impermissible occurrence," he ruled. Judge Dearie ordered Mr. Wiesner retried or released.

The state appealed, lost and opted to let Mr. Wiesner enter a so-called Alford plea, acknowledging that sufficient evidence existed to convict him of some charges, without admitting guilt. He was released in January 1990.

By 1991, he had earned an undergraduate degree from the State University of New York. He completed real-estate courses before learning he couldn't get licensed because of his convictions. A hospital rejected him for a janitor job, he says, out of fear he would raid the medicine cabinet. He was turned down for a perfume sales position. Eventually, a friend got him a lab job drug-testing urine samples, but law was his passion.

"Putting pen to paper opened those big metal doors and got me outside the gun towers," he says. "If anyone is going to be inflated with the power of the constitution, it was me."

Though warned by Judge Goettel that his convictions might be a problem, Mr. Wiesner entered the City University of New York's law school. Students gave Nealie Smarts a new moniker, he says: "Jailbird."

A state judge rejected him for a summer clerkship after learning of his criminal past. Eventually, he landed an internship with New York appellate division Justice John Carro, now retired.

"He was the best clerk I ever had," recalls Justice Carro. The following summer, he did an internship with the Brooklyn District Attorney, who praised his work in a letter later submitted by Mr. Wiesner.

In 1994, Mr. Wiesner received his law degree and applied for admission to the state bar. In New York, bar applications are reviewed by a Character and Fitness Committee, which is made up of volunteer lawyers.

Mr. Wiesner's submission prompted a three-day hearing before a three-member subcommittee, an unusually intensive investigation. Fifteen witnesses testified for him, including Justice Carro, a New York City Criminal Court judge, two prosecutors from the Brooklyn District Attorney's office and the law school dean of the City University of New York. Thirteen others submitted supportive affidavits, including two New York attorneys who had been accepted despite their criminal records.

Judge Goettel told the subcommittee Mr. Wiesner was a changed man. He had been "typical of the 'flower children' of the '70s with a head full of liberal but impractical notions," Judge Goettel wrote. "I believe that the person you are now considering has the necessary qualifications for admission to the bar."

Mr. Wiesner's testimony probably didn't help. He denied trying to kill Ms. Pearce and said he had swallowed enough amphetamines to "kill an elephant." In his version, he was suicidal, and fired shots only to scare Ms. Pearce, fearing she would call the police and thwart his plan to take his own life.

The subcommittee voted 2-1 against Mr. Wiesner, unmoved by his character witnesses.

"A majority of these people did not know the nature of the crimes that Wiesner had committed," said a report by the majority. "Their comments generally related to Wiesner's intellectual acuity and potential legal ability rather than his character."

The dissenter was John Trubin, an attorney who died in 2001. His report listed 10 bar-approved lawyers with convictions for drugs, prostitution and other offenses. He praised Mr. Wiesner's mentoring of high-school students and inmates. "It was important to him that once people go to prison they are not thrown in the garbage," wrote Mr. Trubin.

After reviewing the two reports, the full committee voted 7-4 against admission. The final arbiter is the state appellate division in Manhattan. In 1995, a five-justice panel rejected his appeal without giving a detailed opinion.

The following year, the same panel denied a new motion. When Mr. Wiesner tried again, in 1997, the secretary of Character and Fitness Committee said in an affidavit it hadn't intended to "permanently" deny Mr. Wiesner. "There may be an appropriate time, albeit of imprecise definition, when renewal [of his application] might be in order," the affidavit said. His 1997 motion was denied, as was another in 1998.

Fed up, he sued the five state justices in federal court in Manhattan, alleging violations of due process and equal protection. A federal judge dismissed the suit, saying the issue belonged in state court.

He filed his fifth state appeal in 2000. In response, the admission secretary said the denial was "primarily based" on his convictions and "insufficient evidence of remorse and rehabilitation." The motion was denied, as were similar ones in 2001, 2003 and 2004.

Frustrated after a decade of paralegal work, Mr. Wiesner in 2004 took the New Jersey bar exam -- and passed. After hearing many of the same witnesses as New York, a New Jersey court admitted Mr. Wiesner, unanimously. New Jersey operates under the same rules as New York.

That cleared Mr. Wiesner to practice in federal court in New Jersey, a decision he used to gain access to Manhattan's federal courthouse, located next to the state courthouse where he wants to work. Clients included a drug offender and the owner of an adult bookstore. He hired a part-time secretary and leased a Manhattan office.

He also renewed his fight against New York, filing his second federal suit after the state rejected him for the ninth time in 2006. His suit noted that New York had admitted felons with worse criminal records, including Richard Langone, who spent 13 years in prison for second-degree murder. On his 18th birthday in 1974, Mr. Langone shot a 17-year-old neighbor in a fight over a girl. He earned a law degree in 1998, and was rejected twice before being accepted.

Mr. Langone says patience, remorse and a commitment to the law combined to get him admitted to the bar. "You're not going to strong-arm these judges," he says.

These days, Mr. Wiesner says he works long hours and earns a low-six-figure income. He chain smokes Parliaments and drinks wine but says he's drug-free. His home office is adorned with his law diploma and a poster: "EX-OFFENDERS are people too."

In December, Mr. Wiesner received a notice saying his ability to practice in New York federal court was "based on administrative error." The New Jersey federal court, it turns out, has no such agreement with its New York counterpart. He was ordered to file papers arguing why his admission shouldn't be revoked.

Meanwhile, U.S. District Judge Harold Baer Jr. ruled on Mr. Wiesner's second federal suit on Jan. 28. "Mr. Wiesner has apparently rehabilitated himself into a contributing member of society, and I must add he has done this without much help from our state courts despite the philosophy that applauds rehabilitation," the judge wrote. Nevertheless, he decided such issues are the purview of the state, and rejected Mr. Wiesner's suit.

Last month, Mr. Wiesner formally asked the Manhattan federal court not to revoke his admission there. His emotion-packed pleading quoted author William Faulkner: "The past isn't dead; it isn't even past."