January 24, 2016

Alan Newton and New York's Flexible Principles of Justice

Courtesy of the Innocence Project
When he ran for mayor, Bill de Blasio made a point of talking about doing what was right and what was just. Based on these basic principles, our mayor-to-be promised to reform the NYPD's Stop and Frisk program and settle the Central Park Five case, and he followed through on both counts, even though both policy calls were politically loaded.

The City engaged in early settlement talks in other serious cases, such as the malicious prosecution and conviction of David Ranta and the wrongful death of Eric Garner. These two settlements were not just right, they were good business. By quickly confronting situations with likely liability and serious damages, the City was able to save money and avoid expensive and divisive litigation. These cases are but a few where New York was willing to take a nuanced view on litigation, to acknowledge its responsibility for its mistakes, and to reconcile that exposure with its obligation to do what is right by its citizens.

So why is Alan Newton getting such a screwing from the City?

December 6, 2015

Laquan McDonald: Same Old, Same Old

Cook County Coroner's illustration of Laquan McDonald's wounds
 -- courtesy of the New Republic
When I began this blog, I was enthusiastic about the forum and set aside the energy and time to write. As the months passed, I have found it increasingly difficult to talk about the intersecting issues of civil rights, politics, and law enforcement. That is to say, it feels as though we are watching history repeat itself in increasingly short cycles with little change in state behavior or it's response to the evidence of misconduct. When the aggrieved communities express their anger and concern, the media responds by questioning whether these protests are only making it harder to effectively police crime and suggesting that these incidents are the outliers, always the outliers. By the time I have begun to wrap my head around an event, we are already on to the next, markedly similar travesty. Writing posts discussing police violence and the blue wall of silence that supports it often has a pointless feel to it, given the police shooting and cover up that is inevitably right around the corner.

November 8, 2015

The Right to Remain Silent in a Civil Context

That refusing to respond to questions does not justify an arrest for obstruction of governmental administration (OGA) has just been affirmed by the Second Circuit Court of Appeals. It's sort of an important decision. Many of the routine civil rights cases that I see involve the issue of respect and authority. Simple exchanges rapidly escalate and lost all semblance of proportionality to everyone's detriment. People are often needlessly hurt and arrested, and preconceptions are reinforced all the way around.

A classic example is when a police officer demands identification or an explanation for why the person is somewhere or where he is going to or coming from. These are the sorts of inquiries that are almost never made of certain people or in certain neighborhoods. Put differently, officers then to behave this way in poor areas populated by communities of color, who are sensitive to such race-based policing. When the person declines, the officer sees it as a sign of disrespect to him and his badge, and usually goes all in. As both sides dig in their heels it becomes clear that the only way the officer is getting the info is by forcibly taking it, but to do so without assistance would be foolish, so he radios for help. Moments later, backed up by another half-dozen officers, a forcible takedown is made. The civilian does not fight, but stiffens up, perhaps instinctively, perhaps out of anger, and more force is applied. Words are exchanged and batons or asps might be swung, pepper spray may be deployed. Crowds gather, filming and loudly complaining. The officers get nervous and call for even more backup. The original civilian is arrested because, if nothing else, the police now need to create a narrative to justify and explain all their conduct. The cold truth will usually not suffice, so it is embellished and ginned up until there are enough facts to justify the stop and the subsequent use of force. In cases that make it to lawyers like me, the charges are dismissed and litigation follows.

October 15, 2015

Expungement on the Horizon?

United States District Judge Raymond J. Dearie, a former prosecutor who has never been mistaken for a liberal jurist, has publicly called on the federal criminal justice system to find a way to allow for the expungement of criminal convictions for persons convicted of certain crimes. It is an important idea that is worthy of discussion, both for the benefit of those convicted and society as a whole.

As the NYLJ reported today, Judge Dearie recently issued a decision in Stephenson v. United States, 10 MC 712 (RJD), in which he addressed a request for expungement from Dawn Stephenson, who Judge Dearie had sentenced in 1993 to one day of imprisonment, several months of home confinement, and four years of supervised release following her plea to bank fraud. The government opposed the petition, arguing that the circumstances were not sufficiently extreme to warrant the relief.

Unfortunately for Ms. Stephenson, the court agreed that the current law compelled the denial of the petition, although it left the door open for renewal down the road. This was undoubtedly a tough call for Judge Dearie, as he made clear:
This notion of forgiveness underlies the promise we so extend to individuals making their way through our criminal justice system: if you 'pay your debt to society' -- whether through a sentence or a fine -- you are afforded a second chance in life. Lately, this has been a promise left largely unfulfilled. Criminal records are remarkably public and permanent, and their effects are pernicious. A criminal sentence too often becomes “a lifetime of unemployment.”  It is time for a change. . . .As a judiciary, it may be time to revisit the standard for granting expungement and consider, based on what we know now, whether expungement should be limited to only the most “exceptional” cases.
This is obviously correct. A person convicted of a crime serves his sentence, and often suffers all sort of concomitant penalties, such as the loss of familial relationships, employment opportunities, and so forth. These are the sorts of consequences that follow criminal convictions, and ought to provide a disincentive for criminal conduct. But once that sentence is served and the fines are paid, the offender should have an opportunity to restart his life. Not simply out of basic fairness, but also because it is in our best interest.  There are myriad of reasons why society benefits when our former convicts become gainfully employed, including reduced incarceration costs, lowered crime rates, and healthier and stronger families and local communities.

Redemption and rehabilitation may be an anathema to the law, order, and continuous retribution crowd, but people who screw up and pay the price deserve the opportunity to reclaim their lives. Not necessarily for all offenders, but for those in certain categories, this is surely a fair suggestion.

September 28, 2015

Practice Tip: Beware District Court Bundling Rules

For federal practitioners there are three sets of rules that must be adhered to. These are, generally: the Federal Rules of Procedure (appellate, civil, or criminal, depending on your case); the local district rules; and district judges' individual rules. Unfortunately, they are occasionally in conflict and a failure to properly read and adjust thereto can cause real and lasting harm to your client.

Case in point: many federal judges where I practice (the EDNY and SDNY) require that attorneys "bundle" their motions. What this means is that the motion is not to be filed until after it is fully briefed and served. It works like this: a briefing schedule is issued by the court pursuant to which the movant serves its motion and accompanying papers but does not docket the motion on ECF or otherwise file it. The opposing party then serves its opposition, with the movant to then serve any further reply. It is only then that the motion is actually filed. Some judges require the moving party to file each of the parties' papers, while others expect each party to file its own, but either way, the motion is not filed until long after motion papers are drafted and served.

Parenthetically, I have no idea why some judges do this. The only benefit I see is that it keeps the motion practice entries grouped together on the electronic docket. But since most judges also require that the parties send courtesy copies to chambers, the whole thing is pretty pointless.

Anyway, one scenario that has arisen concerns the interplay between the Federal Rules of Appellate Procedure, which require that a notice of appeal in a civil action be filed within 30 days of the final judgment, and rules governing the filing of a motion for reconsideration, which would toll the deadline for filing a notice of appeal.