Ben Ostrer Would Rather Talk About Reform

The Chronicle, February 25, 2016

By Ginny Privitar

Chester ‘super lawyer’ gets another honor, but in the face of injustice, he won’t be resting on his laurels

Orange County District Attorney Dave Hoovler called Ostrer “a highly skilled litigator who’s down to earth with a big heart.” He added that not many people know Ostrer was a star football player. Ostrer also “knows everything about horses” and is a student of history and politics. FEB 25, 2016

CHESTER — Ben Ostrer doesn’t want to talk about the Charles F. Crimi Memorial Award he received from the New York State Bar Association last month as Outstanding Private Criminal Defense Attorney in New York State.

The Chester resident, who has been named as a “super lawyer” every year since 2009, says he’s in the paper often enough. What he does want to talk about is the need for reform in criminal defense laws, and the growing number of wrongful convictions for all kinds of reasons.

Louis Ostrer, a civil rights advocate when few were

Louis Ostrer was, in many ways, an outlier in his time.

“My father was no saint,” said Ben Ostrer. “He had his pluses and minuses.”

And some legal troubles of his own — but despite that, or perhaps because of it, Louis Ostrer and his wife, Rita, raised three sons who graduated from law school.

A World War II veteran who served in Germany, he was devoted to veterans’ affairs. And he opposed the war in Vietnam.

He was also essentially colorblind, as far as race relations went. Although white, Louis was a friend to and business partner of baseball legend Jackie Robinson and heavyweight boxing champion Floyd Patterson. He was photographed with and had an autograph from Martin Luther King Jr.

Ben doesn’t know how his dad met Jackie Robinson. Louis had been in the clothing business, and he and Robinson went into business together. They had a men’s clothing store on 125th Street in Harlem.

Later, Louis became a principal in a real estate development project, along with Robinson, Patterson, and others, called Wurtsboro Hills Estates. It was to be an inter-racial community outside Wurtsboro with an Olympic pool and community center. This was 1963.

Only five model homes were built. The project ran into money problems, and racism. The models were looted, with thieves stealing copper and furnishings.

Louis, also a spokesman for the project, bitterly complained about not being able to get a mortgage from the banks.

“They’d taken a number of deposits. But nobody gave a mortgage,” he told his son.

Although it fell through, the project was a well-intentioned effort to overcome apartheid in real estate.

Louis Ostrer was a staunch supporter of civil and human rights, said Ben, and those are qualities he and Rita instilled in their sons.

In some cases, for example, confessions have been coerced from the accused — even when the defendant lacks the mental capacity to understand what is going on.

Injustice starts with discovery

Ostrer sees the greatest need for reform in three areas. The first is in what is known as “discovery,” to make a level playing field for defense attorneys and prosecutors. In the discovery process, evidence from one side is presented to the other for a fair examination of the facts. It gives the defense attorney an opportunity to look at the prosecution’s evidence. But the district attorney may have information he or she is not required to provide to the defense until a jury is selected or already hearing the case. Getting crucial information late deprives a defense attorney time to fully investigate new information.

“You would think with the advent of DNA, the frequency of wrongful convictions would” be reduced, he said. “But labs get things wrong — and that’s with people who are fortunate enough to have forensic evidence. What about those who do not have forensic evidence?”

Ostrer said an annual report from National Registry of Exoneration says there have been more than 1733 wrongful convictions since 1989, and 149 wrongful convictions overturned in 2015 alone. The report was also cited in a New York Times article, “Prisoner Exonerated; Prosecutor Exposed.” For every exoneration, Ostrer said, there are untold numbers of innocent people who never get the chance.

“The frequency with which we convict innocent people should be shocking to everyone, and a call to legislators,” Ostrer said.

Minor crimes, young defendants

A second area where Ostrer would like to see change is expungement, which wipes a person’s record clean in the states that have it. New York does not, which affects the minority community disproportionately, he said. For the rest of their lives, they must fill in the space on job applications that asks if they’ve ever been convicted of a crime.

“Know how many people’s lives were ruined with marijuana convictions?” he asked.

If New York had expungement, records of minor crimes could be erased.

“It took years to realize the horror of the Rockefeller drug laws, and now we’re doing it again,” Ostrer said. “Congress is now looking at mandatory minimum sentences. That takes discretion away from judges.”

Finally, Ostrer would like to see the age at which children are prosecuted as adults raised from 16. New York is one of only two states that prosecutes 16-year-olds as adults.

“We now know from science that a young person’s brain is not fully developed at that age, and they should not be prosecuted as adults,” he said. “It’s politically correct to be opposed to any legislation that may be viewed as aiding defendants. But if we’re to truly have a constitutionally sound system, there must be changes to the state of the law here in New York.”

‘Flattered’ by award

Ostrer is one of the foremost criminal defense attorneys in the Hudson Valley. He has gained a reputation for obtaining acquittals in complex murder and sex offense cases. He volunteers as a frequent lecturer and expert on DNA evidence and forensic science topics for criminal defense organizations and legal clinics. His practice also includes personal injury and appellate cases.

Besides his private practice, Ostrer serves as attorney for the Village of Harriman. He is also director of the Legal Aid Society of Orange County.

About the award he’d rather not talk about, Ostrer admits he’s “flattered at the award given the company it put me in — some of the most highly regarded defense lawyers.”

But rather then be impressed, he’d rather have you call your legislator.