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June 2, 2005 - New York Times (NY)

Drug Convict Seeks Release, but Prosecutor Stands Firm

By Andrew Jacobs

Return to Drug War News: Don't Miss Archive

In the five months since New York's Rockefeller drug laws were amended, nearly 100 men and women who were given long prison terms for nonviolent drug offenses have been released early. John McCaskell, who has served 15 years for crack possession, is hoping to be next.

But in a case that has angered some rights advocates, Mr. McCaskell's early release is being strenuously opposed by the Manhattan district attorney's office, which believes he should not be eligible under the new legislation because his career as a dealer in Queens, they say, was characterized by bloodshed.

Although he was arrested and charged with possessing four ounces of crack, prosecutors contend that Mr. McCaskell, 37, was actually a big-time trafficker who played a role in the killings of a cabdriver and a rookie police officer who was guarding the home of a drug witness. The killing of the officer, Edward Byrne, in 1988, epitomized the lawlessness of a city awash in crack and crime.

But in hearings this week in State Supreme Court in Manhattan, Mr. McCaskell's defenders have said it is wrong to keep him in jail on accusations that never led to formal charges. If Mr. McCaskell was involved in other crimes, they say, then prosecutors should charge him.

"If you apply our justice system's principles of law to this case, the guy should walk," said Robert Gangi, executive director of the Correctional Association of New York, which supports Mr. McCaskell's bid for freedom. "As it is, he's already done more time than most people do for homicide."

Before his 1992 drug possession trial, in which he was sentenced to 25 years to life, Mr. McCaskell was convicted of two other felonies: attempting to bribe a police officer and selling crack.

An associate who was arrested on drug charges and later became a police informer described Mr. McCaskell as the director of a well-run drug enterprise based in South Jamaica, Queens, that in some weeks brought in $36,000. According to the witness, Hezekiah Salone, Mr. McCaskell told him to kill a livery driver who had helped transport drugs in his car. He said Mr. McCaskell worried that the driver, Bhikharie Soeradj, had seen too much. Officially, Mr. Soeradj's killing remains unsolved.

The most explosive accusation, which has never been backed up by more than Mr. Salone's words, is that Mr. McCaskell helped dispose of the gun used to kill Officer Byrne. In court documents, Jeanine Launay, the assistant district attorney in the case, describes Mr. McCaskell as a drug kingpin who dealt in kilos, not ounces. "This defendant is anything but a low-level, nonviolent drug offender," she wrote.

But Mr. McCaskell's lawyer, Margaret Ratner-Kunstler, said the prosecution's current case relied largely on the 15-year-old testimony of an informer who will not be appearing in court. "This has basically become a new trial except that I can't cross-examine the main witness," she said after yesterday's hearing. "Something about this is not right."

Ms. Ratner-Kunstler, the widow of William Kunstler and the director of the William Moses Kunstler Fund for Racial Justice, has taken on nearly 40 prisoners seeking freedom under the new legislation. She said her organization, which helped lead the drive to change the state's drug laws, has been overwhelmed by the complexity of the cases, although she described Mr. McCaskell's as the most daunting. "I thought this was going to be easy," she said.

So did the McCaskells. Nicole McCaskell, his younger sister, said she had a bedroom waiting for him in the family's Queens home. "We thought we'd have him back by now," she said yesterday outside the courtroom. "He's done his time and paid his dues. Enough is enough."

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