State Appeal

 “A judge who requires others to ‘tell the truth, the whole truth, and nothing but the truth’ must set an example by telling the truth herself in a legal proceeding.” 
— Administrator Robert Tembeckjian, State Commission on Judicial Conduct

Nickel’s convictions and sentence were appealed to the Third Judicial Department. On January 20, 2005, a five-judge panel of that court (Presiding Justice Peters, and Justices Spain, Carpinello, Kane, and Mugglin) issued a decision affirming all five of the felony convictions. The court did, however, reduce Nickel’s total sentence from 54 to 32 years.

Astonishingly, given a veritable mountain of reasonable doubt (see “A”, two most serious counts, Changes His Stories, Nickel’s Home, and Photograph), in this court’s decision, authored by Justice Kane, it wrote: “The verdict was not against the weight of the evidence. Defendant’s own statement, the photographic evidence and the victims’ testimony established guilt.” For one thing, Nickel’s purported statement says nothing whatsoever about the two top charges -- oral sex and the ‘finger’ incident. The “photographic evidence,” apparently referring to the central sexual Photograph at issue, is even more demonstrative of Nickel’s innocence:  mismatched boys’ eye colors; room depicted obviously not Nickel’s bedroom, as alleged victim claimed; adult in photo proven not to be Nickel.


The court goes on to write that: “[N]o witness’s testimony was incredible as a matter of law …” If “A”’s testimony does not meet this criterion, it is difficult to imagine what testimony ever would:  He was wrong about literally every interior and exterior detail regarding Nickel’s Home about which he testified, a location he claimed to have visited numerous times and where he supposedly engaged in sexual activity. (Photos of the home taken by the police themselves proved this beyond any doubt.) Moreover, he had actually “A”, two most serious counts, Changed His Stories as to where the two most serious incidents supposedly took place. When this court then goes on to speak of “the overwhelming evidence of defendant’s guilt,” one is left to wonder if it even read the record at all.


Justice Karen Peters wrote a separate opinion. Although she concurred with the affirmation of Nickel’s convictions, she disagreed with the lowering of his sentence, arguing that it should have stayed at 54 years. It was, of course, her prerogative to do so. However, to quote Congressman Barney Frank of Massachusetts:  “Although everyone has a right to his [or her] own opinion, no one has a right to his [or her] own facts.”


Justice Peters writes in part:  “These events were further compounded by defendant’s photographing of himself sodomizing one of his nine-year-old victims.” Firstly, Nickel was actually acquitted of the charge which related to the taking of that photograph. Secondly, even the most cursory examination of the record (see Photograph) should have caused any responsible jurist to refrain from including such a reckless and baseless statement in a legal opinion. As happened with the trial court (Judge Paul Czajka), it would appear that hatred blinded her to the actual facts.


In the very next paragraph, Justice Peters writes:  “Defendant’s inability to conform his conduct to the restrictions imposed upon him was apparent even after he was arrested. When he was released on bail and placed on electronic monitoring, he corresponded with another known sex offender and told him that he continued to have contact with minors in violation of his conditions.” This last allegation is absolutely false. Nickel did not violate any of the conditions of his release on bail. (If he had, his bail would have been revoked; but it was not.) Nickel was free to correspond with whomever he wished. If Justice Peters had bothered to actually read what Nickel’s initial bail conditions were, she would have known that they did not state that he was to have no contact with minors. (In any event, aside from a Thanksgiving dinner to which a close friend [and former boss] of Nickel did bring her own son, Nickel’s only contact with minors were those from his own family. Subsequently, Nickel was asked — and agreed — to not have contact with any minors. As with all of his bail conditions, he abided by this.)


She then writes:  “He further professed his philosophical view that pedophilia is an ‘acceptable expression of God’s will for love and unity among human beings.’” This is grossly misleading, in that Nickel was actually quoting someone else there, which is readily apparent from the letter itself.


Moreover, it is instructive to note that whereas Justice Peters ‘cherry-picked’ (out of context) one apparently inflammatory statement from these letters, she 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 the 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 …” (from letter dated 12/5/00) (All emphases are original.) [Part of the reason for Judge Peters' "Tough on Crime" (albeit weak on the facts) stance here is that she was just completing her first term, and had to run for re-election the following year.]


Justice Carpinello, on the other hand, wrote a separate opinion where he advocated for even more of a sentence reduction, to 25 years.


Besides the factors mentioned above, there were several other unusual aspects surrounding this appeal. For one, it took an unusually long time for it to be issued. Oftentimes, when a decision is late in coming, it is an indication that a court is preparing to issue a reversal — that is, to overturn one’s convictions. Second, it is rare enough for one judge to dissent from the majority as to the sentence; for two judges to so dissent is virtually unheard of. (In the Sentencing analysis conducted, there was not even one such case.) The foregoing may be an indication that (at least some members of) this court was considering reversing the convictions, but then backed off for some reason, electing instead to grant the “consolation prize” of a reduced sentence.




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