Sentencing


“Indignation, it seems, is the most gratifying of all emotions. Nothing is quite so soothing as the feeling of superiority over sinners who have committed offenses that we are sure ourselves to be innocent of and that allow us to purse our lips in disdain…” 
— (Peter Gay, “The Fictions of Günter Grass, New York Times, 8/20/06, pg. WK-11.)

On July 6th, 2001, despite the fact that Nickel was a first-time offender, Judge Paul Czajka sentenced him to the absolute maximum on every count which he was convicted of:  25 years for one count of Sodomy in the First Degree, 15 years for one count of Aggravated Sexual Abuse in the First Degree, and 7 years each for two counts of Sexual Abuse in the First Degree. Because Judge Czajka specified that the sentences were to be served consecutively, Nickel was sentenced to a total of 54 years.

As required by law, prior to the sentencing, a Pre-Sentence Report was compiled by the Albany County Probation Department. Unfortunately, besides filling the report with factual and other errors — all of which were to Nickel’s disadvantage — the report’s author, Richard Hotaling, failed to actually follow the law in preparing it. He only gave a copy to the defense just minutes before sentencing; the law requires at least one full day so that the defense can absorb and adequately prepare a response to it.

Secondly, in the “Victim Impact Statement” section, he listed one “victim” regarding whom Nickel was not convicted of anything. And once again, contrary to law, he did not actually interview the alleged victims themselves. Moreover, the report’s overall tone was so one-sided that it was, in a word, venomous. (In a further example of bias, Hotaling refused to include in the report information sent to him by Nickel’s attorney.)

For one thing, Hotaling seems unable even to keep his "victims" straight. He writes: "Nickel reports that his interaction with [alleged victim "B"] ended in October 1999 when he left [school "C" attended] to pursue other employment." "B" never attended the school Hotaling mentions here; "C" did.

In a far more serious misrepresentation, Hotaling writes:

"Nickel[']s feelings might be summed up in a December 2000 letter written to his Minnesota acquaintance in which he writes, 'As with all human behavior, I would suggest that pedophiles can say, 'I have chosen; I choose; I will act in this fashion. I believe that the outcome will be good. I will pay the price for the act, whatever that price may be ... Take the risk; the consequences of the risk, and make the claim; this is something good. Pedophiles need to become more positive and make the claim that pedophilia is an acceptable expression of God's will for love and unity among human beings.'"

This was also read aloud at the sentencing hearing. However, read in context, things are rather different. From Nickel's letter:

"In my research I ran across a quote ... [by] Ralph Underwager, a psychologist, married man and oft critic of the sexual abuse establishment: 'For me, the beginning of spiritual life is in knowing that god is gracious, knowing that it is God's purpose that we have a good life, knowing that it is God's purpose that we be free ... the issue is not right and wrong but good and evil ... Good and evil only pays attention to outcomes. You can never know the outcomes until you have already acted. Spirituality that attends to the issue of good and evil must always be courageous, bold, operating always with complete information ... As with all human behavior ..." [It then continues as per the above.]

Therefore, in this letter, where Nickel was clearly quoting someone else, Hotaling takes that quote out of context and uses it to imply that Nickel admitted to everything that he was convicted of. This is simply dishonest.

Moreover, Mr. Hotaling's dishonesty might be best summed up by the fact that, whereas he 'cherry-picked' (out of context) one apparently inflammatory statement from these letters, he conveniently ignored the numerous times where Nickel talks about the falseness of the charges against him:

"This is actually the most pressing issue right now, this photograph the prosecution claims is me and this boy having sex. Well, it isn't -- I've never had sex with any child." (from letter dated 9/16/00)

"[A]lleged sexual pictures of me and ["A"] are neither of me nor of ["A"] ... and the way they interviewed these kids was so sloppy, these detectives have confused and mixed up what each of the three boys have said." (from letter dated 10/17/00)

"The more they look at my case the more they must realize how weak the evidence against me really is. I know I didn't have sex with that (or any) boy ...

"I am declining their ridiculous 'plea offer' involving several years in jail for things I didn't do.

"I've never had any kind of sex with a boy." (from letter dated 11/16/00)

"The judge forced the prosecutor to release on disk the picture they claim is of me and ["A"] having sex. But of course it isn't, and our photo expert has now proven that conclusively. That's great of course, but the D.A. [at that time, Assistant D.A. Veronica Dumas] doesn't care. She says ["A"] identified it as him and me. This just shows how confused he is.

"They offered me this ridiculous 'plea bargain' based on something I didn't do ...

"My friend Cathy came over yesterday. She's a good person, a good Christian. I have told here there's some truth but mostly falseness to what I've been accused of.

"[I have been] sexually inactive for well over two years now ..." (from letter dated 12/5/00) (All emphases are original.)

Hotaling also writes in his report: "This Officer spoke with Senior Investigator Mark J. DeFrancesco of the Albamy County Sheriff's Department. 'The verdict stands for itself,' states the Investigator ... DeFrancesco states that even if given the maximum amount of incarceration allowed by law the defendant will likely re-offend once released." How does he know? He admitted that he'd never even handled a case like this before. As for the verdict "stand[ing] for itself," this doesn't appear to actually mean anything; i.e., when would that ever not be the case? In any event, this is the same person who, as the head of this investigation, concealed police-taken photos of Nickel's home which proved beyond any doubt that "A" was wrong about each and every verifiable detail surrounding the alleged oral sex about which he testified.

"[Nickel's] plan, prior to being arrested, was to continue his education, and, in this Officer['s] opinion, make himself even ore marketable in the field of child development, thus exposing more innocent children to his abusive behavior." Nickel had, indeed, been admitted to a Ph.D. program in Human Development. this was a non-clinical program; that is, one geared towards producing academics and researchers. The fact is, quite contrary to Hotaling's insinuations here, Nickel had decided to leave direct work with young people, in favor of a career in academia.

For the "Victim Impact Statement," though he failed to actually interview any of the alleged "victims" themselves, Hotaling did interview some of their parents.

Concerning alleged victim "C," regarding whom the charges were actually dismissed; he writes: "She [the mother] recalls that her son was quite upset that the defendant was in trouble as he considered himself to be a good friend of the defendant ... At the time of this interview the [boy's] mother has yet to tell her son of the defendant[']s conviction as she is concerned how it will affect him emotionally." In other words, this boy clearly was negatively impacted by Nickel's arrest and/or conviction.

As to alleged victim "A," who represents five of the six charges which Nickel was convicted of, Hotaling writes, among other things, that "["A"] is apparently having difficulty ridding himself of the traumatic memories." This is undoubtedly, and sadly, the case. However, at least as far as the top charge of oral sex is concerned, that is a false memory, implanted into "A"'s mind through suggestive interviewing on the part of the police and the prosecution. (The second-highest charge, relating to the supposed 'finger' incident, also represents a false memory.)

Finally, regarding alleged victim "C": "Currently [his parents] state that their son is doing very well. They report that he is not receiving any type of counseling services and do not feel that it is necessary."

There were a large number of Nickel’s supporters at the sentencing hearing, many of whom had written letters to Judge Czajka on Nickel’s behalf. Both of these facts appeared to irritate Judge Czajka who, prior to the actual commencement of the hearing, proceeded to tell the assembled supporters that he knew Jeffrey Nickel better than they did.

Early on in the sentencing hearing, a local television crew asked Judge Czajka for “permission” to film the proceedings. Although Czajka’s clerk had received this “request” the day before, this was the first that the defense had heard of it. In any event, though the defense objected to the taping, Czajka allowed it anyway. This was contrary to state law, which clearly states that all parties must agree to any video recordings being made. Certainly, Czajka did appear to subsequently ‘play’ to the camera, denouncing the non-profit organizations for which Nickel had volunteered for “allowing” him to get near children. Curiously, though the TV station had seemingly fought hard to be allowed to film the proceedings, it ended up not airing them at all.

At the hearing itself, Judge Czajka called Jeffrey Nickel a “predator,” telling him: “You’ve lived your entire life with one goal, to assault children and from all indications, this continues to be and will continue to be your goal.” But the facts of this case would appear to refute these assertions. If this were his only goal, why did the third alleged victim testify that nothing happened? Moreover, Nickel was a teaching assistant who had worked with literally hundreds of children. And yet, not even a single one of them alleged anything untoward. If this were Nickel’s only goal, why is it that there was only one count of “sodomy” — the most serious level of sex crime — even alleged? Besides those charges relating to purported victim “A”, whose testimony was patently false on each and every verifiable element, there was only one other count, concerning a second alleged victim, “B”. On that count, Nickel was convicted of placing his foot on the boy’s (clothed) genitals. That’s it. Are these the actions of a person with the single purpose in life to assault children?

Judge Czajka sentenced Nickel to the absolute maximum, despite the fact that:

Nickel was a first-time offender — he had never previously even been arrested for anything.
No force, coercion, or threats of any kind were so much as alleged, even assuming that he had done the things he was convicted of. (Moreover, the prosecution did not offer any victim impact statements at the hearing itself.)

In order to evaluate the sentences imposed on Nickel relative to those received by others convicted of similar crimes, an exhaustive sentencing survey was conducted for the years 1994 – 2004. All sentences that appeared in the appellate division reports for sexual crimes committed against minors were included.

For each and every count that Nickel was convicted of, the sentences he got were significantly longer than average. The mean sentence for the top count was 9.4 years; Nickel’s was 166% longer. For the second most serious count it was 5.6 years; Nickel got 168% more time. Lastly, the average for Sexual Abuse First Degree was 3.6 years; Nickel’s was 94% greater.

This analysis also looked at aggregate sentences which were equal to or greater than those received by Nickel. There were only three that fit these criteria. In the first of these, the defendant had been convicted of 28 felonies, which also involved physical abuse and threats. He also had previous felony convictions. In the second case, also involving a repeat offender, the defendant was convicted of seven felonies. The third case involved six felony counts, one of which was attempted murder. The victim there was a 12-year-old girl. The defendant had stopped his car in front of her bicycle, chased her through the woods, and forcibly raped and sodomized her after binding her hands with duct tape. This was hardly his first offense either.

Given the above, it would appear that the total sentence that Judge Czajka gave to Jeffrey Nickel was the most severe sentence ever handed down in New York State, to a first-time offender, for sexual crimes against minors.


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