Golb v. Attorney Gen. of N.Y.
| Decision Date | 21 January 2016 |
| Docket Number | 15 Civ. 1709 (KPF) |
| Parties | RAPHAEL GOLB, Petitioner, v. THE ATTORNEY GENERAL OF THE STATE OF NEW YORK, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Petitioner Raphael Golb was convicted in November 2010 in New York State Supreme Court, New York County, of numerous criminal offenses stemming from a startlingly intricate scheme to steal the identities of individuals who took academic positions contrary to those espoused by Petitioner's father. Petitioner challenged his conviction at various levels of the New York State court system, in the course of which 19 of his convictions were upheld. Thereafter, on March 9, 2015, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition") in this Court, in which he challenged his remaining convictions for criminal impersonation in the second degree and forgery in the third degree.
In broad summary, Petitioner contends that, under Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965), and its progeny, he is entitled to a new trial on all counts. Alternatively, Petitioner argues that his convictions should be vacated because the underlying criminal impersonation and forgery statutes are unconstitutionally overbroad and vague, and because the trial court contravened the Supreme Court's decision in Garrison v. Louisiana, 379 U.S. 64 (1964). For the reasons that follow, the Petition is granted in part and denied in part; two of Petitioner's nineteen convictions are reversed, and the remainder are left undisturbed.
This case grew out of an academic disagreement over the origin of the Dead Sea Scrolls (the "Scrolls"), which were discovered at an archeological site called Qumran in the 1940s and 1950s. Many scholars have opined that the Scrolls were written by a Jewish sect known as the Essenes, who lived close to the caves where the Scrolls were found.
Norman Golb, a professor at the University of Chicago, has argued against this view. Professor Golb believes that the Dead Sea Scrolls were penned by a variety of different authors and kept in Jerusalem's libraries until 70 CE, when they were moved to caves along the Dead Sea to keep them safefrom invading Roman soldiers. (Pet. Br. 6). Petitioner is Professor Golb's son, and he shares his father's views regarding the origin of the Scrolls. (Id.).
In 2008, Petitioner assumed the identities of three academics — Frank Moore Cross, Lawrence Schiffman, and Jonathan Seidel — in order to send a series of emails regarding the Scrolls. Those emails formed the basis of Petitioner's prosecution.
In mid-2008, the North Carolina Museum of Natural Sciences opened a Scrolls exhibit, and invited University of North Carolina Professor Bart Ehrman to lecture at the exhibit. (SA 1091). On July 17, 2008, Petitioner wrote an anonymous blog post, arguing that the museum should not have allowed Professor Ehrman to deliver a lecture because he (Professor Ehrman) was not a Scrolls "specialist." (Id. at 1091-96). The blog post also criticized Professor Ehrman's suggestion that the Essenes were the likely authors of the Scrolls. (Id.).
Though the blog post certainly communicated his point, Petitioner upped the ante. On July 20, 2008, Petitioner sent an email from frank.cross2@gmail.com to four scholars at the University of North Carolina. (SA 1013-16). The email contained a link to Petitioner's anonymous blog post and said, "It looks like Bart has gone and put his foot in his mouth again ... I'm seeing this crop up everywhere on the web." (Id.). Petitioner signed the email "Frank Cross." (Id.). Petitioner acknowledges that Frank Moore Cross was a"well-known" Dead Sea Scrolls scholar who taught at Harvard University and Wellesley College. (Pet. Br. 9-10).2
A few months later, in the fall of 2008, the Scrolls were exhibited at the Jewish Museum in New York City. The Jewish Museum invited Professor Lawrence Schiffman, then Chair of the Hebrew and Judaic Studies Department at New York University ("NYU"), to lecture at its exhibit. (SA 1, 56, 1072). Professor Schiffman has written extensively about the Dead Sea Scrolls, and he believes that the Scrolls were written by "a sect at Qumran." (Id. at 4, 19).
On August 4, 2008, Petitioner published an article on www.NowPublic.com, using the pseudonym "Peter Kaufman" (hereinafter, the "Kaufman article"). (SA 1072-80). The Kaufman article accused Professor Schiffman of plagiarizing some of Norman Golb's ideas. (Id.). Here, again, it was not enough for Petitioner to publish the article: Later that same day, Petitioner used the email address "larry.schiffman@gmail.com" to send the following message to four of Professor Schiffman's graduate students:
(Id. at 949). The link at the bottom of the email directed readers to the Kaufman article.
The following day, August 5, 2008, Petitioner sent a similar message from "larry.schiffman@gmail.com" to every member of Professor Schiffman's department at NYU. (SA 38, 958). The message said:
(Id. at 958).
Not content to rest on these emails, Petitioner also emailed the Provost of NYU and the Dean of the NYU Graduate School of Arts and Sciences as Professor Schiffman, asking what he could do to "counter charges of plagiarism that ha[d] been raised against [him]." (SA 956-57). Both emails contained a link to the Kaufman article. (Id.). Shortly thereafter, Petitioner sent an email from "Lawrence Schiffman" to NYU's student newspaper, imploring its staff "not to publish a word" about any plagiarism accusations. (Id. at 955).
At Petitioner's trial, Professor Schiffman testified that he felt "very attacked" by Petitioner's emails, "and basically for like a month I couldn't do [any]thing but respond to people's inquiries." (SA 24).
In the fall of 2008, the Royal Ontario Museum (the "ROM") in Toronto also hosted a Scrolls exhibit. On November 22, 2008, Petitioner sent an email from seidel.jonathan@gmail.com3 to the Board of Trustees at the ROM, stating:
The public has the right to know whether the ROM exhibit will indeed present the two basic theories [regarding the origin of the Dead Sea Scrolls] in a scientifically neutral manner ... , or if it will rather stick to a "low-keyed assertion of the mainstream view." Furthermore, the public has a right to know if University of Chicago historian Norman Golb, who is widely considered to have debunked the traditional theory of the Dead Sea Scrolls in his book, will be excluded from participating in the museum's lecture series[.]
(SA 859-61). Petitioner signed the email "Jonathan Seidel." (Id. at 861). Petitioner later sent the Board of Trustees two follow-up emails (still as Jonathan Seidel), urging them to include Professor Golb's ideas in their lecture series. (Id. at 862-63).
Soon after Petitioner wrote to the Board of Trustees, he used his "seidel.jonathan@gmail.com" account to contact Dr. Risa Levitt Kohn (SA 864), the curator for the ROM exhibit (id. at 860). Petitioner asked Dr. Kohn if she was "planning to answer Golb's critique of [her] catalogue." (Id. at 864).
Finally, Petitioner sent emails from "seidel.jonathan@gmail.com" to dozens of Dead Sea Scroll scholars; curiously, however, these emails disparaged his father's work. (SA 865-66, 884). Among other things, the emails announced that Norman Golb's "Chicago filth must be answered as quickly as possible, so please let me know if you're willing to help out." (Id. at 865). Petitioner signed two of these emails "Jonathan S," and he signed the third "Jonathan Seidel." (Id. at 865-66, 884).
Petitioner was charged with violating multiple sections of the New York Penal Code. In particular, he was charged with two counts of identity theft in the second degree, in violation of section 190.79; 15 counts of identity theft in the third degree, in violation of section 190.78; ten counts of forgery in the third degree, in violation of section 170.05; 20 counts of criminal impersonation in the second degree, in violation of section 190.25; three counts of aggravated harassment in the second degree, in violation of section 240.30, and one count of unauthorized use of a computer, in violation of section 156.05. (A 3-24).
At his trial, Petitioner requested several specific jury instructions for the forgery and criminal impersonation charges that are relevant here. (A 50-54). Under New York law, "[a] person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument." N.Y. Penal Law § 170.05. By contrast, "[a]person is guilty of criminal impersonation in the second degree when he ... [i]mpersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another; or ... [i]mpersonates another by communication by internet website or electronic means...
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