Attorneys Charge Gay Men Entrapped in Palisades Park
Some defense attorneys who are representing men who have been arrested for public lewdness in New Jersey’s Palisades Interstate Park are charging that the police, the prosecutor and the judge in those cases are motivated by anti-gay bias.
“What I’m hearing is that effectively it’s the cops who come on to the defendant,” said Marianne F. Auriemma, an attorney in private practice in Maywood, New Jersey. “I think they’re just on a witch hunt because they feel that gay people are not allowed in the park… They’re not going out there to arrest people who are having sex, they are going out there to arrest people that they perceive to be gay.”
Going back to the summer of 2004, Auriemma has represented as many as five men who were arrested in the park, with four arrested on one day alone. While working on one case, she sought all the lewdness arrest records in the park in 2004 and received roughly 90 cases. About 45 have been “completed,” with all but one resulting in a guilty plea or verdict, she said.
Most of the arrests occurred near the George Washington Bridge or further north at the State Line Lookout, which has spectacular views of the Hudson River, near the town of Alpine, two miles south of the New York-New Jersey state line, according to Auriemma.
Chief John J. Parr, chief of the Palisades Interstate Park police, the agency that made the arrests, agreed.
“Predominantly, I would say yes,” Parr said, adding that most of the arrests took place during the day.
Another attorney, who feared possible repercussions for clients, would only comment anonymously and also accused the police of bias.
“The Palisades Interstate Park Commission has a vendetta against gay men being in their park because their assumption is that gay men are in their park for only one thing and that is to engage in illicit sex publicly on public grounds,” the attorney said. “In furtherance of that, they have specifically assigned handsome, young male cops in the Palisades Interstate Park police to entice and entrap gay men, to lure them into attempting to perform sexual acts, and then arresting them.”
The park, which runs along the west side of the Hudson River from Fort Lee near the George Washington Bridge in New Jersey to Bear Mountain in New York, is administered by a ten-member commission with the governors of each state appointing five members.
Auriemma said it was “selective prosecution” because only men who attempt homosexual sex are facing charges.
“I find it a discriminatory application of the law,” she said. “You can’t tell me that a straight couple never went into that park and tried to have sex. They just don’t go looking for that because they view that as normal.”
The park is dotted with overlooks where heterosexual couples can and do park their cars to have sex.
“This is taking a class of people and literally singling them out,” the anonymous attorney said. “You will find heterosexual couples engaging in sex or whatever with nary a concern.”
The prosecutor in the cases, Douglas F. Doyle, spoke briefly with Gay City News, but did not return later calls.
Parr, whose 27-officer agency patrols only the New Jersey section of the park, vigorously defended his department.
“We’re not entrapping anybody,” he said. “I agree it’s a large number as far as arrests for lewdness… I can only say to you that it is because of the amount of the activity that is going on.”
Parr said his officers had not sought out men having public sex, but had arrested them as part of a broader anti-crime effort.
“What we do is we put officers in plainclothes,” he said. “They will look for narcotics activity, they will look for any other kind of activity going on. There is no specific detail. We’re just enforcing the statute.”
Parr said his officers had arrested heterosexuals caught having sex in the park though he could not say how many such arrests had been made or when.
“Certainly not as high, but we have made arrests of heterosexual couples,” he said. “It’s hard for me to speak on a particular year, but we have.”
Several of the park’s appointed commissioners were contacted with queries about the law enforcement activity, but none returned the calls.
Other lawyers either would not comment at all or only anonymously fearing harm to their clients. Not every attorney thought the police were entrapping the men.
“My professional opinion is it’s not entrapment,” said Doris J. Newman, an attorney at the Rem Zeller Law Group in Hackensack, who has defended several men.
Legally, entrapment means that the defendant would not have committed the act, but for the police inducement. Newman offered a different rationale for why her clients were not guilty of violating the law.
The New Jersey lewdness statute, which falls under the header “disorderly persons,” requires that the act be “flagrantly lewd and offensive” and that the person “knows or reasonably expects to be observed by another non-consenting person who would be affronted or alarmed.”
Newman said her clients did not believe the person who observed them, who turned out to be a police officer, would be offended given that the officer had propositioned them.
“The strong argument is they did not reasonably believe that the person they were exposing themselves to would be alarmed,” she said. “They wouldn’t have exposed themselves unless they genuinely believed the other person was interested in them.”
In New Jersey, lewdness is a low-level charge that is tried in municipal courts that handle misdemeanors and traffic violations. The sentences in these cases, however, have been onerous.
“I think the judge has been divvying out probably two years in probation,” Newman said. “I think all the people I’ve represented have been fined $1,000. They’ve all been banned from the park for a year or two.”
Newman did not believe that the judge in these cases, Steven J. Zaben, was motivated by anti-gay bias.
“I would not say he was unfair,” she said “I do not agree with the punishment of probation… I don’t agree with Zaben, but I don’t think he’s out to deliberately get gays. I really don’t.”
Auriemma said that her review of the cases found that probation, a stiff fine and a ban to be a typical sentence. Zaben may be going beyond his legal authority in banning the men from the park, she said.
“I think he’s overly harsh in his handling of these cases,” Auriemma said. “His idea of a plea deal is two years probation, a fine of $1,000… and then he bans them from the park for two to three years which I do not think he has the authority to do.”
Joseph G. Monaghan, an attorney in private practice in Hackensack currently representing six lewdness defendants, including two heterosexual couples due to appear before Zaben on June 2, said the penalties were too tough, though not motivated by anti-gay bias.
“On a first offense, I don’t know of any other disorderly persons offense in which probation is routinely meted out as part of a sentence,” he said.
Monaghan said that, in his view, the bans meant the men could not use the Palisades Interstate Parkway, which runs through the park.
“They are banned from the park which I have taken to understand that they are banned from the use of the highway,” he said.
Zaben did not respond to calls seeking comment. All municipal court judges in New Jersey are appointed. Zaben was placed in his job by Christine Todd Whitman, a former Republican governor, in 1998.
It is typical practice for political appointees to make contributions to the party by which they were appointed, and Zaben made donations to Republican state and federal candidates as well as to the New Jersey Republican Party, according to state and federal campaign finance data. His donations stopped when he was appointed to his judgeship in 1998.
Doyle, the prosecutor, was hired by the park commission. Like Zaben, he appears to be a loyal Republican.
Doyle contributed to the 2004 campaigns of Pres. George W. Bush and Pennsylvania Sen. Arlen Specter, who faced a re-election contest, and has made recent donations to state Republican candidates, the New Jersey Republican Party and the National Republican Congressional Committee, according to state and federal campaign finance data.
Municipal court judge and prosecutor jobs in New Jersey are part-time. Both Zaben and Doyle also maintain law practices, Zaben in Woodcliff Lake and Doyle in Hawthorne. Much of Doyle’s recent legal work has been for Republican candidates and organizations in New Jersey. In 2003 and 2004, he represented John Murphy, a candidate for the Republican nomination for New Jersey governor and a Bergen County Republican group.
Gay groups objected to the arrests because they represented disparate enforcement of the law.
“There is no indication that police are going after and framing straight people like police are doing toward gay people,” said Steven Goldstein, chair of Garden State Equality, a statewide gay organization in New Jersey, who said he had heard reports of increased lewdness arrests of gay men in the park and in other locations throughout Bergen County. “That disparate treatment makes police conduct here the modern equivalent of 1950s McCarthyism.”
Susan Sommer, senior counsel at Lambda Legal, a gay civil rights group headquartered in Manhattan, expressed a more guarded view.
“There are laws against public sex and they are there to protect the public from having to be exposed to other people’s sexual conduct,” she said. “We don’t have any quarrel with those laws per se. It is a problem if there is selective enforcement that targets only gay people and no one else who may be breaking those laws. Beyond that, I don’t have any comment.”