December 30, 2014

Rikers Island to Remain Under Bronx DA's Jurisdiction

New York Governor Andrew Cuomo has vetoed a bill that was designed to transfer jurisdiction over criminal prosecutions stemming from events on Rikers Island from the Bronx to Queens. All you need to know is that the District Attorneys from both counties opposed the transfer, as did Mayor de Blasio and virtually every other organization (and most downstate politicos), with the notable exception of the Corrections Officers Benevolent Association. 

While COBA claimed the Queens DA would more aggressively prosecute inmates who assault guards, the union's rather obvious motivation was to get away from Bronx DA Robert Johnson, who's shown a willingness to go after corrupt or abusive guards. (As I have discussed here, here, and here).

Cuomo's rejection was grounded on the notion that transferring a huge section of cases from one duly elected prosecutor to another would violate Article XIII, Section 13, of the New York Constitution, which permits voters to elect a district attorney to "faithfully prosecute" crimes occurring in their county of residence. (See here and here).

Rikers Island is a bit of a jurisdictional enigma. It is an island containing various jails, all of which are under the control of the New York City Department of Corrections. The island itself lies between Queens and the Bronx, the jails on the island all have Queens addresses, and the island is connected by bridge to Queens, not the Bronx. Yet, the island has long been considered to be part of the Bronx, and thus state court cases arising out of events on Rikers Island are heard in Bronx courts. Had the City initially determined that the island was part of Queens, it would be hard to argue. But the vetoed bill was plainly rank forum shopping, and it is precisely this sort of naked political gamesmanship that doomed the bill. Well, that, and the staunch opposition from prosecutors on both sides of the divide.

While COBA's president has been complaining about the veto, it is probably not his membership's biggest problem. The federal government's announced interest in the management and oversight of the jail complex will likely pose far more problems for the City and the guards than any headaches that DA Johnson may cause. The short version: things are about to get worse for the people running Rikers Island, and that's good news.

December 21, 2014

The NYC Comptroller and the Garner Case

New York City Comptroller Scott Stringer is again showing a willingness to insert himself into NYC civil rights litigation.

Earlier this year, Stringer settled the claims of David Ranta, who had spent 23 years in prison after being framed by a NYPD detective, and Jerome Murdough, who died needlessly at Rikers Island, before any lawsuit had actually been filed. Facing an impending lawsuit by the estate of Eric Garner, Stringer is stepping forward to see if the claims can be resolved without litigation. These actions mirror his office's increased emphasis on pretrial settlements generally. It is a welcome change.

December 16, 2014

Heien v. North Carolina: Status Quo Continued

Yesterday the Supreme Court decided Heien v. North Carolina, further affirming that the law means one thing for the police, and something else for the rest of us.

The relevant facts are simple: a police officer stopped a vehicle for having only one functioning brake light (although the stop was motivated by the officer's suspicion of the driver's "stiff" posture). The stop led to questioning, which led to a consensual search of the vehicle, which turned up cocaine, resulting in the prosecution of the car's owner, who was a passenger at the time.

The trial court rejected the defendant's motion to suppress the seizure of the cocaine because it flowed from the seemingly legitimate stop for the faulty brake light. It turns out, however, that in North Carolina, there is nothing illegal about having only faulty brake light. This means that the officer had no lawful basis to stop the car in the first place, and so the appellate court reversed the trial court, finding that since the stop was not lawful, the cocaine turned up in the subsequent search was fruit of the poisonous tree. The state's high court reversed again, finding that the mistake was reasonable, so who cares if the stop was lawful. The case then went to the Supremes, who agreed (with Sotomayor being the one dissenter). In sum, the Court decided that the officer's legal mistake was indeed "reasonable" and therefore of no consequence.

To understand the bias inherent in that ruling, let's flip it around. Can we, as citizens, invoke the "reasonable mistake" or "I didn't realize that was the law" rule when we are arrested? Hardly. Ignorance of the law is no excuse. The fact that you did not realize something was illegal is no defense, no matter how reasonable your belief. Unless you are a police officer; then apparently it is perfectly ok.

December 14, 2014

Learning to Lawyer: Take Your Exams

Last week Columbia Law agreed to let students traumatized by the Eric Garner GJ vote put off taking their final exams. Some legal professionals thought this was not the best idea they had heard (Judge Richard Kopf, "A Gentle Rebuke"; Scott Greenfield, "Take the Test"). To this chorus let me add, toughen up, cupcakes.

The primary function of a lawyer, and particularly a litigator, is to be an advocate for others. Our clients have often been traumatized or wounded in some way, and it is our job to go forth and battle for them. They are depending on us to be their warrior, and they expect us to do our jobs. Hence, Judge Kopf's refrain, "it is not about you," is particularly apt. Sure, our clients expect us to show empathy and understand their position, but their experiences and cases are about them, not us. As students poised to go into the world as baby lawyers, you must be ready to put the weight of your clients' needs and problems on your shoulders. To do so you must be prepared to absorb the misery and trauma they have suffered. I repeat: they suffered, not you.

Bad decisions, unexpected jury votes, even the depressing sense that the fix was in, are all part and parcel of being a litigator. These often land like crippling kidney punches, with a long, lingering effect. So what? These are precisely the moments when you need to shake off the impact, analyze the landscape, and step forward, ready to continue the fight. Demonstrate, write letters to editors, get into drunken arguments in bars, lie in bed all day, do whatever you need to, but do so on your own time.

Just like everyone else who managed to get to work the next day, so too should our baby lawyers be tough enough to sit for a few exams. Frankly, it's a little embarrassing.

December 9, 2014

Here Comes Schneiderman

Courtesy of
New York State Attorney General Eric Schneiderman has just volunteered to take on the role of Special Prosecutor and investigate all police actions that result in the death of unarmed civilians. (See NY Law Journal article here, NY Times here). What hackneyed political nonsense.

Citing a crisis of confidence in local prosecutors, and presumably because neither his telephone nor email was working, Schneiderman held a press conference to alert the governor to his availability. Were I inclined towards cynicism, I might view this as a cheap, opportunistic attempt at self-promotion. One might think Schneiderman, well aware that his office is a stepping stone to the governor's mansion (Andrew Cuomo and Eliot Spitzer were both AGs before their elections), was shamelessly using the public outcry over the deaths of Michael Brown and Eric Garner for political gain. One could also believe that Schneiderman's pose was pure hucksterism, and that the only thing genuine in his announcement was its underlying ambition. Were I more cynical, that is.

Schneiderman is correct in one sense: much of the public may well have lost faith in the criminal justice system. That hardly means that the people are waiting breathlessly for Eric Schneiderman to arrive.

December 7, 2014

Garbage In, Garbage Out

Courtesy of
"Respect the process," was New York City Mayor de Blasio's mantra on talking head television this morning, as he talked about the Eric Garner no true bill vote. Like an "honor the call" philosophy in pick up basketball, or the requirement that lawyers "respect the robe" when confronted with shoddy judging, we are expected to accept individual bad decisions or false calls for the sake of the larger game. It is part of the view that our legal system offers justice in the aggregate, but certainly not in every case. Not the most reassuring thought for those on the wrong end of unjust calls.

De Blasio's sales pitch is a predictably infuriating bit of the same "independent grand jury" nonsense that we heard in Ferguson. The idea is that the GJ is like a scale, on which all of the boxed up relevant evidence is placed, so the GJ can render a true reading of the weight of that evidence. If it is more than X, there is an indictment, if it is less, there is not. The prosecutors are merely messengers who assemble that evidence in a neutral way; it is the weight of the evidence that drives the outcome. This is the process de Blasio insists we respect, even if we think it's a bad call.

The problem is that he is perpetuating an ongoing lie. The mayor knows full well that the grand jury, no matter how well intentioned, follows the bread crumbs laid down by the prosecution. The evidence presented, the manner in which it is presented, the witnesses called, the way they are examined, the charges that are available, and the way in which the jurors are instructed, are all at the discretion of the prosecution. The outcome is not determined by the presentation; it is the desired outcome that determines how the evidence is presented.

Or, to put it differently, if you feed garbage data into even the most perfect computer model, you will receive garbage results. The process is hardly the point.

December 6, 2014

No True Bill in Staten Island

A friend asked me the other day for my thoughts on the Eric Garner GJ vote and I was at a loss. There are so many different ways to think about the vote, so many different issues, that it's hard, intellectually, to have a singular cohesive response. But on a gut level, it's staggering. Yes, I know it was Staten Island, but that's hardly an excuse.

I am not sure what is more profoundly depressing: the fact that Eric Garner was needlessly choked out by a police officer on video (and then die from related injuries) only to have a grand jury say no crime was committed, or my initial assumption that the officer would skate on the charges. Regardless, these are the events that ought to compel a discussion of how we got here, and for white folks, myself included, to take a step back and acknowledge the legitimacy of black anger about the state of the union.

December 4, 2014

They Toll for Thee Bernie

I feel cheated. Bernie Kerik's everything-but-the-kitchen-sink lawsuit against Joe Tacopina is now over. There I was, waiting for leaked videos of painfully inquisitive depositions, salacious testimony, and withering cross examinations. I was hoping to hear whether Tacopina really did give up his client in a series of proffer sessions he had said never happened, or if it was all just bitter smoke from a disgruntled former client who can't accept the finality of his long, long fall from grace.

Sure, we had some moments. Opposing counsel trading shots, the audio tape Bernie made of his good friend Joe (because don't we all record our friends when we talk?), Joe squirming (because he had sworn that conversation hadn't taken place), and all the former clients jumping on the bandwagon.

But then the inevitable happened. Bernie's attempt to sue Joe in 2014 for stuff that happened five, six, or seven years earlier fell apart. Then there was the slight problem of his having pleaded guilty. There were also some difficulties in the RICO claims that are not worth going into. It was obvious after the parties argued their motions that the court didn't think much of the case, so the outcome isn't surprising.

It does mean that the factual disputes remain open. Joe may have won, but not in a way that shows the allegations that mattered were false. Much like the final scene in the Sopranos, we are left with no idea what actually happened, and no means of finding out. Bernie's making noise about how maybe he's better off in front of the disciplinary committee. That's nonsense, of course, and certainly the audience wasn't ready to go home.

But Judge Koeltl was unconcerned about good theater. He did his job and took this lawsuit, crippled by untimeliness, a lack of causality, and pleading deficiencies, out to the back yard and put it down like it was Old Yeller. It was the right thing to do, but I feel cheated.

November 27, 2014

Legal Aid's New NYPD Misconduct Database

New York City's Legal Aid Society has a new data collection program called Cop Accountability Program, or CAP, which will gather a myriad of information about cops behaving badly. (Here). CAP is the result of hard work and creative thinking by Cynthia Conti-Cook, an excellent attorney with the sort of boundless energy and enthusiasm necessary to make this program possible. (Disclosure: I know and like Cynthia, if that wasn't clear.) It's great news for both criminal defense and civil rights practitioners, who rely on this sort of information to overcome built-in bias and help persuade jurors, judges, and adversaries that police conduct has indeed occurred.

As the GJ's vote in Ferguson highlighted earlier this week, it remains extremely difficult to convict police officers. In the case of Darren Wilson, the GJ responded negatively when asked merely whether there was enough evidence to proceed with charges. Judges routinely instruct juries that the fact that a witness is an officer does not make his or her testimony more or less credible, but that instruction is virtually meaningless; jurors, like everyone else, perceive the evidence before them through a prism embedded far too deeply to be ignored on command.

November 25, 2014

No True Bill

The sad spectacle of the Ferguson grand jury's long, execrable march towards the inevitable no true bill vote is over. Details of the Michael Brown shooting aside, it has long been clear that whatever the outcome had been, there would be anger, bitterness, and little in the way of dialogue or introspection.

This is the sad state of race relations in this country; the inability of too many white people to acknowledge that race still matters greatly, far more greatly than these folks imagine, the refusal to engage in real discussions about this uncomfortable subject, and the resulting sense that justice was not served in Ferguson and that it may have been unrealistic to think it could it have been.

On a more concrete level, the end result was exactly what the prosecution intended. That Ferguson's chief prosecutor Robert McCulloch's office did not affirmatively ask the grand jury to indict at the close of the presentation says all one needs to know. In sum, prosecutors can virtually always indict anyone they choose, and here, they chose not to, and did so in a way that enables the powers that be in Ferguson to both shift responsibility to the anonymous grand jury, while offering up "objective" arguments as to Wilson's lack of criminal responsibility. Whether Wilson could have been successfully prosecuted or why McCulloch brought about the no true bill vote are open questions. That the grand jury's vote was the result of a calculated effort by the prosecution to avoid an indictment is beyond argument.

November 23, 2014

Blurred Lines: When FBI Informants Commit Crimes

That the FBI (and law enforcement generally) uses informants to gather information and make cases about other criminals is no secret. But what is law enforcement to do when it's informants want to keep committing crimes while providing information? The answer appears to be, let them.

We are not talking about cooperating witnesses. Those are people who will testify at trial, leaving a narrow window for ongoing criminality. But informants are a different story. They provide intel but aren't witnesses. They can remain in place for years, decades even. And that place is normally smack dab in the midst of the bad guys the FBI handlers want info on, and the same guys who are sensitive to the idea that one of their bunch may be snitching. All this means is that the FBI's informants are under all sorts of pressure to keep on doing bad deeds; crimes that the FBI is on the hook for if they're being committed with the government's blessings.

November 20, 2014

Interactive Map Shows Nationwide Race/Arrest Rate Figures

USA Today has published an interactive map that shows arrest rates by race on local levels.

The map is here. I haven't spent much time on it yet, but it appears potentially interesting. Have a look.

November 11, 2014

De Blasio and the Central Park 5 Settlement Reprised

Curiouser and curiouser. The Daily News recently ran a story detailing how deeply the City's Law Department fought against the historic settlement of the Central Park 5 lawsuit. (Here). The News references an internal report issued by the lawyers which argued that the aggregate settlement ought to be capped at $15 million, and that a trial was quite winnable. The thrust of the story was that the lawyers thought the eventual settlement of $41 million was grossly overvalued and unnecessary.

Today, however, Mayor de Blasio, put the responsibility for the settlement squarely on Zachary Carter, the head of the Law Department. (Here). De Blasio flatly denied knowing the amount prior to the agreement, playing any role in the process, or hearing any objections. It's a tough sell and reflects poorly on the Mayor.

November 3, 2014

Unions Denied Entry into Stop and Frisk Litigation

Not too surprising, the Court of Appeals for the Second Circuit (the federal appellate court for New York, Vermont, and Connecticut), has rejected the various police unions' last minute attempt to intervene in the Stop and Frisk litigation and, indirectly, affirmed Judge Shira Scheindlin's 2013 determination that the infamous policy was being unconstitutionally applied.

Vindication for Judge Scheindlin? Eh, sort of, kind of, not really. But it's a good outcome and an end to all the needless drama that flowed from the police unions' attempt to salvage the City's abandoned defense of the Stop and Frisk policy.

November 2, 2014

Second Circuit Finds Search Unconstitutional, Tosses Defense Verdict

A federal appellate court last week held that Connecticut police officers' warrantless entry into a private yard, where they shot and killed the owner's dog, could not be justified simply because the house was in a high-crime neighborhood. Holding that the trial court erred when it allowed the jury to consider the defense of exigency, the court threw out the jury's defense verdict, found that plaintiffs' rights were violated as a matter of law and remanded the case for a determination on damages.

It's plainly the right outcome as the officers' entry onto plaintiffs' property was entirely unjustified. What is interesting about the decision, however, is how reluctantly the court reached this decision. As it turns out, the tip that led the cops to the home, and which they claimed made their entry legal, was utterly baseless; a fact that surely influenced the final ruling, even though it shouldn't have. More to the point, the appellate court found that while the officers had to get a warrant first, there was probable cause for the entry. This ruling emphasizes just how washed out and worthless the PC standard has become, even though it found this particular entry unlawful.

October 21, 2014

Comedic Break: Televising the Supreme Court

John Oliver is correct. If somebody insisted on playing audio tapes of crappy piano music hammered out on a cheap electric organ, you'd eventually punch them in the face. But if it were accompanied with a video of a cat playing said organ, well then, you would willingly watch it over and over. You might even click "share."

With that understanding of the synthesis between dull auditory sensations and adorable animals dressed up like humans, behold the canine Supreme Court.  Skip ahead to the 2:45 mark to see the Court called to order.

Woof woof, Your Honor, woof woof.

October 18, 2014

Justice versus Law

As readers may recall, I am a fan of Richard Kopf's blog, Hercules and the Umpire. While I may sometimes disagree with him, he is a smart and thoughtful sitting United States District Judge who is willing to share his views on a variety of interesting topics. An advocate of transparency, he is one of the few judges who speaks his mind, a trait sorely lacking amongst the judicial branch of government.

He has recently revisited the question of doing justice versus doing law. Where some see the role of the judiciary as being the former, Kopf plainly believes it is the latter. Interestingly, he sees his inability to fully grasp the notion of doing justice to his lack of religious faith, whereas true believers are determined to do justice in all their endeavors. (He also comments favorably on Christopher Hitchens, which is a definite plus, although Hitchens took some harsh positions with which I strongly disagreed. No, not his attack on Mother Teresa, I sort of enjoyed that one).

As a fellow non-believer, I struggle somewhat with Kopf's notion that "justice" may be beyond our reach. Whatever your personal take, it's a meaty topic worthy of further thought.

Kerik v. Tacopina: Not With A Bang . . .

It's been awhile but there's a few updates on the Bernie Kerik-Joe Tacopina brouhaha. As a person who always enjoys a good legal slugfest and who has no connection to any of the players, I must profess my disappointment with how things are going. As of today, it looks like the federal litigation will end up dismissed or settled, depriving us of live testimony about some serious allegations of misconduct. There's a new state court case underway as well, but it doesn't look like much. Oh well.

United States District Judge John Koeltl heard oral argument the other day on the parties' motion practice stemming from Tacopina's bid to have Kerik's suit dismissed on various grounds. The most obvious and difficult hurdle for Kerik has always been how plainly untimely his suit appeared. According to the Daily News, that was a serious problem for Judge Koeltl as well. As for Kerik's claims that Tacopina more recently slandered him, the judge was troubled by Kerik's apparent failure to show the defamatory statements were not merely knowingly false but made with malice. The point being that, while Judge Koeltl has not yet ruled, it's looking bleak for Bernie.

The judge also ordered that the parties meet with a magistrate judge to discuss settlement. You would be forgiven for assuming that the level of animosity between the parties and their lawyers is far too great, and that too much has already been said and done, for settlement to be remotely possible. But both sides could benefit from taking this case (and Tacopina's companion suit against Kerik) out to the yard and putting it down. So, it's possible, but unlikely.

Finally, Kerik's attorney, Tim Parlatore, has filed a suit against Tacopina in Manhattan in New York State Court on behalf of an unidentified female plaintiff. The gist of the case is that Tacopina represented the woman in a sexual harassment case case against a Connecticut based law firm, which ended with a low-dollar settlement. According to the woman, Tacopina failed to mention to her that he was also working with this same firm in a "big-dollar case," and that he induced her to give up her lawsuit for a pittance in order to protect that relationship. She also alleges that he made various misrepresentations to her about his experience, level of prior success, and perhaps most importantly, suggested incorrectly that he was licensed to practice in Connecticut.

In conjunction with the filing of the suit, Parlatore moved by Order to Show Cause (a device that allows a party to obtain immediate injunctive relief, a/k/a a temporary restraining order, without going through the formal process of normal motion practice) to freeze Tacopina's assets.

According to the Daily News, Tacopina is one of a group of investors who are purchasing an Italian soccer club, and Tacopina has previously announced plans to move his family to Italy. Based on this, according to the News, Parlatore is seeking to protect his client against Tacopina's potential flight:

'Tacopina's stature in the community is largely fabricated and his numerous misdeeds in betraying the interests of other clients are coming to light in a manner that will most likely bring an end to his career and his inflated image,' Parlatore said in court papers filed in New York Supreme Court. 'Plaintiff has reason to believe that Tacopina has put into motion a plan to flee the jurisdiction with his family and his assets and to reestablish himself overseas, out of the reach of our courts and the multitudes of his former clients, who have become his victims.'

I have no clue whether there's any truth to any of the allegations, or if Tacopina really has any exposure in terms of a the injunctive relief sought. But one thing is clear, his name and reputation are taking a serious beating, a deep bruising that won't be easily cured, even if with a clear cut thumping of Bernie Kerik on untimeliness grounds.

Meanwhile, it's looking like Parlatore may have stumbled into a previously unheard of niche practice: representing the disgruntled clients of Joe Tacopina.

October 16, 2014

A Legacy of Disgrace

Yesterday, David McCallum walked out of a Brooklyn courthouse a free man. Wrongly convicted for murder in 1986, McCallum was incarcerated for about 29 years before finally being released. The vacatur of his conviction was primarily the result of Brooklyn District Attorney Ken Thompson's Conviction Review Unit, which asked Supreme Court Justice Matthew D'Emic to vacate the convictions of McCallum and his co-defendant Willie Stuckey, and to dismiss their indictments, and the work of McCallum's pro bono attorney, Oscar Michelen. Stuckey did not live to see this day, having died in prison in 2001.

October 13, 2014

Judge Kamins Resigns, Hynes's Fate Unknown

Justice Barry Kamins (left) and Charles Hynes
courtesy of
New York State Supreme Court Justice Barry Kamins has announced his retirement. That was a smart move, since it allows him to exit stage left gracefully and seemingly on his account. That he was run out of office after being caught flagrantly disregarding basic legal rules of which he was certainly aware, and that his forced removal was all but guaranteed had he not quit now, is beside the point. Kamins, an important and well known figure in local legal circles, is a nobody in the eyes of the general public, and his departure caused nary a ripple in the local press. But, it does serve as a reminder: the fate of Charles Hynes is still unresolved.

October 10, 2014

Civil Suit v. Mafia Cops Survives SJ

Steven Caracappa (left) and Louis Eppolito
It's a gritty crime story straight out of Hollywood. Two seasoned, experienced NYPD detectives went dirty and worked for the mob for a period of years, all while wearing their gold shields. They personally carried out murders, and provided confidential info that led to other killings and helped high level mobsters evade capture. They were finally brought down and convicted years later.

In 2006 and 2007 their victims filed various lawsuits against the City of New York and the two detectives, Louis Eppolito and Steven Caracappa, under state and federal law, based in large part on the City's failure to discipline Caracappa when he was caught passing confidential police documents to a known member of the Mafia way back in 1985. Ultimately, the detectives were convicted in the United States District Court for the Eastern District of New York of various crimes, and their conviction was affirmed in 2008.

The actions were consolidated and assigned to the Hon. Raymond J. Dearie, a former prosecutor himself and a longtime judge. Last week, Judge Dearie denied the defendants' motion for summary judgment on the federal claims. The state claims were dismissed, but the plaintiffs will have their day in the court.

For those of you that enjoy crime novels and the like, you really ought to read the opinion, which follows after the break at the bottom of the page.

The decision is also useful to practitioners as it addresses both claim accrual issues (i.e., why these claims are not time barred), and Monell liability. For the casual reader, municipalities aren't normally liable when their officers deliberately engage in criminal activities. Certainly, as a matter of law, unlike private sector employers, they are not vicariously liable even though these are on the job acts. Rather, the plaintiffs needed to point to some policy or executive action from which the underlying actions sprung, or evidence that the city was deliberately indifferent to the possibility that its officers were engaged in misconduct. A tough task indeed.

October 9, 2014

The NYPD Film Festival: A Misconduct Triology

It's been a bad week for the NYPD, as a series of videos have surfaced depicting New York's Finest engaged in various acts of blatant misconduct, ranging from random, entirely gratuitous violence, to thievery. Much of this conduct is egregious and impossible to explain away, but we'll see how the PBA spins it. And so, without further ado . . .

October 7, 2014

Update: Court Rejects Trial Judge's Claim That He Was Biased

The post-trial events are somewhat unuusal: a white liberal judge hears a murder case where the defendant is white and the victim is black, and issues a conviction. Years later, said judge states that maybe he erred, maybe the defendant was actually the victim of the judge's own unconscious biases. The defendant moves to vacate the conviction and a hearing is held. Fascinating stuff, at least to me.

October 4, 2014

Same Old Same Old CCRB

Mayor Bill de Blasio just named two respected law professors to the City of New York's Civilian Complaint Review Board. This follows on the heels of his appointment of Richard Emery as Chairman. (Here). The new appointees, Deborah Archer and I. Bennett Capers, have impressive pedigrees (see here) and, theoretically, ought to help ensure greater public confidence in the CCRB.

Certainly, de Blasio must be hoping the appointments will foster the belief that the CCRB is more than just a weak-kneed, useless organization, whose only purpose is to falsely lead NY'ers to believe there's a place to complain when cops abuse their authority. But those of us who have been around understand that the CCRB is essentially nothing more than a complaint box hangin on a wall in the back of a store; a box that management periodically empties directly into the nearest garbage can.

September 30, 2014

Drug Convictions Overturned En Masse In Philadelphia

On Friday, September 26, a judge in Philadelphia vacated 59 different drug convictions with the blessing of the District Attorney's office. As The Inquirer noted, the court moved briskly, taking no more than a minute per case, in "an assembly-line treatment of cases, which the courts have perfected after years of police scandals."

The cause? All of these cases flowed from arrests made by former Officer Jeffrey Walker during the period of 2004 to 2013. In May 2013, Walker was arrested by the FBI sting after he was caught planting drugs in a suspect's car, stealing keys, and then burglarizing his house.  Walker promptly began cooperating, which has helped turn up six other dirty cops, Thomas Liciardello, Brian Reynolds, Michael Spicer, Perry Betts, Linwood Norman, and John Speiser.  Walker is awaiting sentencing.

September 29, 2014

Judge: Rikers Guards and Captain Ought to be Fired

Aerial photograph of Rikers Island
Aerial Photo of Rikers Isalnd
In a decision today, Administrative Law Judge Tynia Richard called for six NYC Department of Corrections officers, including a Captain, to be fired, after finding that they hog-tied an inmate, broke one of his vertebra, fractured his nose, and left him with both eyes swollen shut and his face bloody, and then lied about their conduct and falsified their reports. The NY Times called it a "rare rebuke," and they're not wrong.

Vicious guard on inmate violence is not new to Rikers, nor is it uncommon. In fact, it has become somewhat institutionalized. See here, here, and here. What is new is the acknowledgement and rejection of this brazen misconduct. Arrest after arrest of guards for assaults and cover ups appears to be slowly making an imprint on the public's  conscience. It's a welcome change, albeit one that is incurring only incrementally.

September 20, 2014

NYPD Use of Force Stats: Consider the Source

The NYPD is proudly touting statistics that indicate that the use of force by police officers has been declining for the past 20 years. That's great. Unfortunately, it may not be true. As the department has had to acknowledge, the NYPD is relying in large part on self-reporting by officers. Color me cynical, but the sourcing is problematic.

September 12, 2014

OT: The Mets Are Being Sued

This has nothing to do with civil rights or criminal law. But as a long-suffering NY Mets fan (I know, it's a redundency), this pending employment lawsuit screams out for attention. Or maybe I just wanted to vent. Either way, thanks to Above the Law for the piece.

This is a team whose ownship placed all their monetary eggs in the Bernie Madoff basket, leaving the team with all the spending power of a book of green stamps and some coupons for Subway. Rather than sell the team to people with the intellectual or financial ability to operate a professional sports team like competent adults, the Wilpons continued to stumble about; assuring fans they had the money to sign top shelf free agents, while giving away their assets and slicing payroll. While very publicly sacrificing talent level (and wins) for saving, they hiked their ticket prices to match the crosstown rival Yankees and then wondered why the stadium was empty.

September 10, 2014

DWB is a "Measurable Phenomenon"

Driving while black, or DWB, has long been a primary, if unstated basis, for many police stops. Yet, many members of law enforcement and dubious white folks have tried to brush it off as a mere figment of the imagination for overly sensitive black people. But the empirical data is in and the results confirm what many people already knew: DWB is indeed real.

Quick aside: WashPo referring to DWB as a "phenomenon" is a sloppy, if not deliberately, misleading misnomer. Merriam-Webster's online dictionary defines the term as "something (such as an interesting fact or event) that can be observed and studied and that typically is unusual or difficult to understand or explain fully." There's nothing mysterious or hard to understand about DWB. It's conscious and/or sub-conscious racism. Sometimes things are exactly what they look like, and DWB is one of those things.

September 7, 2014

NYPD To Wear Body Cameras

Last week NYPD Commissioner William Bratton announced that a pilot program testing out body cameras on NYPD officers will be going into effect. As he points out, it's a technology that cannot be avoided. Interestingly, Bratton's unilateral announcement preempts pending litigation.

Judge Shira Scheindlin's final order in the Stop and Frisk litigation contained a provision requiring the testing of body cameras over a one-year period, and left it to the federal monitor to implement the appropriate plan. That program would have been arrived at with input from an array of plaintiffs' representatives, the NYPD, and other folks. However, these discussions have been delayed by continuing appellate litigation, which has put the court's order in limbo. Following events in Ferguson, and the death of Eric Garner in Staten Island, Bratton decided to move forward, albeit without the participation of plaintiffs' counsel, or anyone else.

September 6, 2014

Central Park Five Settlement Finalized

The settlement of the Central Park Five civil case, stemming from the arrest of five young men for the violent rape and assault of a young woman, known as the Central Park Jogger, was formally accepted by the court on Friday. (See here). The $41 million settlement was reached some time ago, and I have made my thoughts known previously.

But with the resolution yesterday came a statement by New York City Corporation Counsel that bears some scrutiny. Specifically, Zachary Carter said,

[The settlement for $41 million] should not be construed as an acknowledgment that the convictions of these five plaintiffs were the result of law enforcement misconduct. On the contrary, our review of the record suggests that both the investigating detectives and the assistant district attorneys involved in the case acted reasonably, given the circumstances with which they were confronted on April 19, 1989 and thereafter.

Carter's statement is notable for it's overt support of the police and prosecutors, an attempt to salve the wounds the settlement most definitely opened up at 1 Police Plaza.

It also caught my eye because it's complete bullshit.

September 1, 2014

J. Edgar Hoover, LBJ, and George Hamilton, together again.

The Philadelphia Inquirer reported a fascinating story about how LBJ employed the FBI and his personal attorney/Supreme Court appointee Abe Fortas to investigate actor George Hamilton, back when he was dating LBJ's daughter. A hat tip to Josh Blackman for the info. The full article is here.

J. Edgar Hoover
J. Edgar Hoover
It's a great story. Several years ago, Professor Tuan Samahon of Villanova Law School, who was considering writing a book on Abe Fortas, filed a Freedom of Information Act request for an FBI memo. Samahon thought the document would confirm that the FBI was using info about Fortas's sexual liaison with another man to squeeze Fortas into leaking info about a pending Supreme Court case. He also wondered if the FBI was somehow linked to Fortas's resignation from the Court after only four years on the bench.

Ferguson Civil Rights Lawsuit Filed

The race to the courthouse has begun. As reported a few days ago, six people have filed suit against St. Louis County Police Chief Jon Belmar, Ferguson Police Chief Thomas Jackson, Ferguson P.O. Justin Cosma, and others, alleging a variety of police abuses during the period of August 11-13. The case is White v. Jackson, 14-CV-1490 (HEA), and is pending in United States District Court for the Eastern District of Missouri.

August 31, 2014

Prying Eyes: Federal Prosecutors and Attorney-Client Emails

The Washington Post today called for a moratorium on government prosecutors reading emails between federal inmates and their lawyers. It's absurd that such an editorial is necessary, or that anyone could reasonably debate the issue. Yet, the Post is currently on the losing side of this argument, as the government is doing all it can to intrude on the attorney-client relationship wherever possible.

In New York federal courts, whether to allow prosecutorial spying on these communications is up to each judge on a case by case basis. Some have ruled in favor of government access, others have firmly rejected it. (See here). But in view of how important it is for clients to be able to speak openly with their lawyers, and the vast advantages government prosecutors already have over these defendants, providing a meaningful opportunity for counsel and client to speak is a small matter.

August 27, 2014

CCRB Still A Paper Tiger

It was only a few weeks ago that New York City Mayor Bill de Blasio named Richard Emery as the Chairman of the Civilian Complaint Review Board. Not surprisingly, civil rights lawyers applauded the choice, being that Emery is a name partner in Emery Celli Brinkerhoff and Abady, LLP, a firm known for its plaintiffs-side work in civil rights cases. While undoubtedly a sound selection, it is likely a pointless gesture that will do little to prop up the CCRB, which has slowly lost whatever limited muscle it might have once had.

August 26, 2014

Judicial Shelter for Bad Cops and Prosecutors

The scales have long been tipped.
An enlightening op-ed piece in today's Times by Prof. Erwin Chemerinsky about how the federal courts have allowed the concept of absolute and qualified immunity to expand exponentially, making it far more difficult than it ought to be to hold officers, prosecutors, and governments responsible for deliberately engaging in unconstitutional conduct. Click here for the link.

For the uninitiated, absolute immunity means just that; the official cannot be sued, period. This applies to judges and prosecutors, as long as the latter is not acting in an investigatory capacity. Deliberately withholding evidence of innocence? Can't be sued. Letting your witnesses lie on the stand? You're good. Framing an innocent man? Well, you get the picture.

August 24, 2014

Thinking Like A Lawyer

Attorney Scott Greenfield, author of the blog Simple Justice, has an interesting post (here) about what it means to "think like a lawyer." Quoting from the Paper Chase, he talks about how we can get there when we are starting out with our "heads full of mush." He sees it as developing the ability to sift through the volumes of information to pick out the gems, the particular items of factual value, and to be cold-blooded about it, to put aside our own sense of right and wrong, or the need to do justice, in order to see facts and law clearly and without blinders. This is all true, but it requires just a bit more.

August 21, 2014

USA v. Kerik v. Tacopina v. Kerik Lurches Forward

The three-headed Kerik Tacopina litigation is slowly moving forward. As the Daily News observed today, the animosity between the parties has clearly spilled over to the lawyers, who are slugging it out in grand style.

These claims and counter-claims in this action -- Kerik says Tacopina is a drug-abusing, lying, adultering, racketeering attorney who disclosed Kerik's confidences to get out from under a possible federal investigation, and Tacopina is suing Kerik for saying that Tacopina snitched on Kerik to the feds -- were great grist for court-watchers. But now the lawyers have taken off the gloves.

August 20, 2014

Jabbar Collins Settles

Jabbar Collins, a man wrongly convicted by former Kings County District Attorney Charles Hynes's office in 1995 for a murder he did not commit, has finally obtained the justice he was seeking. Earlier this year, he settled his claims against the State of New York for $3 million for his unjust conviction and imprisonment, but proceeded with his federal civil rights claims. Yesterday, he reached an agreement with the City to resolve the federal lawsuit for an additional $10 million. It's an outstanding result for Collins and reflects excellent advocacy by his lead counsel, Joel Rudin. The litigation also has helped pave the way for other cases where people were railroaded by the KCDA.

The federal action contained a series of claims against various members of the NYPD, assistant district attorneys from the KCDA, and the City itself for being deliberately indifferent to police and prosecutorial misconduct. Meaning that Hynes knew that his office looked the other way when there was evidence that the police were withholding or fabricating evidence, or that assistant prosecutors were playing fast and loose with their obligations to disclose exculpatory evidence.

In 2013, United States District Judge Frederic Block ruled on a motion for summary judgment in Collins's case. While the Court dismissed the claims against the individual prosecutors under the doctrine of absolute immunity, it found sufficient evidence of Hynes's deliberate indifference to allow the claim to proceed.

As the NYLJ accurately notes today, the Collins case represented much of what was perceived to be wrong with Hynes's office. In fact, as discussed here and here, it illustrates an all too real tendency of Hynes's office to value convictions over the Constitution, to the point where far too many innocent people were convicted and imprisoned for us to acccept that these were outliers or unintended consequences of perfect storms. Rather, they were the inevitable by-product of an office that placed little value on its duty to do justice, to observe statutory and constitutional obligations in both spirit and substance, and looked instead at "winning" as the end goal.

Collins has stated that he hoped this litigation would vindicate his innocence, expose the shady practices of the KCDA's office, help drive Hynes from office, and provide a level of compensation that would signify the injuries that the KCDA cause Collins and his family. He has fully succeeded in all regards.

The decision, which sets out Collins's claims in detail, can be found here:

Jabbar Collins - Mem. and Order 2.15.13 by ml07751

August 17, 2014

Reality Check, Please

Kevin O'Keefe, whose "Real Lawyers Have Blogs," is someone I read regularly. His take on how and why to blog is informative and useful. However, I must take issue with his post yesterday, "Every law student is on law review."

I get that blogging offers law students an opportunity to speak, to be heard, and to join in conversations about legal topics of choice. And I understand that Law Reviews are usually closed clubs, offering membership to only a select few students, and publishing notes and comments of even fewer of those selected. But to equate blogging with legal scholarship is simply incorrect, and the post's Pollyannaish view on blogging as a professional endeavor is far too sunny.

August 16, 2014

A Little Ferguson History

Henry Davis
Henry Davis
The Daily Beast's Michael Daly has uncovered a remarkable story of police abuse that borders on the Kafkaesque. (Thanks Overlawyered for the tip). Henry Davis was arrested by police when they mistook him for another Henry Davis for whom there was an outstanding warrant. Our Henry Davis had a different middle name and social security number, but no matter.

The arrest occurred nearly five years ago in September 2009. One interesting tidbit is that this happened in America's newest fave hotspot: Ferguson, Missouri.

The short version: the police beat up Davis, concussing him and causing him to bleed. A lot. Although they had to admit he wasn't the man named in the warrant -- the only reason he was picked up in the first place -- he was criminally charged for . . . wait for it . . . getting blood on their uniforms. You ought to read Daly's piece to get the full flavor of the case.

A quick check on Pacer reveals that Davis filed a civil lawsuit in the United States District Court for the Eastern District of Missouri in August 2010. During the case, according to Daly, the officers, who deny the excessive force, actually denied that they were bled on, even after being confronted with the signed criminal complaint. It also appears that the district judge found this perjury too minor for a due process violation, which is bizarre. If the officers lied to prosecutors about the damage to their uniforms in order to initiate and maintain the prosecution, Davis ought to be able to proceed to trial on a fabricated evidence/due process claim. The court also decided that the concussion was not a severe enough injury to merit a trial, which is another facially ridiculous ruling.

Discovery in the civil case has also revealed that the Ferguson police force lacked any sort of system for reporting or investigating police misconduct, tracking misconduct claims, and so forth. Generally, if there was a claim of excessive force, the officer in charge of the case wrote it up and placed the only report in the criminal case file. Nothing went into the individual officer's personnel file, no data base was created, and there was no meaningful way for the department to know whether any of its officers had a penchant for violence or other misconduct.

The case is going up on appeal to the United States Court of Appeals shortly. Good luck to Davis and his counsel.

August 15, 2014

Resisting Temptation

The NY Times today carried an interesting op-ed piece by Jesse Wegman on resisting arrest, ending with the suggestion that the NYPD ought to show a little more restraint. It's accurate as far it goes, but it could go further.

Mayor de Blasio is quoted saying,
When a police officer comes to the decision that it’s time to arrest someone, that individual is obligated to submit to arrest. They will then have every opportunity for due process in our court system.
That is wrong for a couple of reasons. First, a prosecution for resisting arrest requires that the arrest itself be lawful. In other words, you are only required to submit to a lawful arrest. More on that later.

Second, the promised due process is illusory. It's a nice concept, and we have all sorts of rules and such, but our system often produces gross injustices, with little or no recourse for the person who waited in vain to be heard and treated fairly. What is undeniable is that the "due process" de Blasio touts is a mirage, a system of rules that elevate form over substance. Or, as the old Roy Bean line goes, "First we have a fair trial, then we hang him."

August 14, 2014

Ferguson USA

It's hard to describe what's going in Ferguson. Partially because it appears so surreal, but mostly because the police there have attempted to impose a news blackout and the media have largely capitulated, depicting the aftermath of the murder of unarmed 18 year-old Michael Brown as rioting, when the real story is the militarized response of the police.

August 10, 2014

Nixon's Resignation Turns 40

President Richard M. Nixon
The Man, the Myth
Today marks the 40th anniversary of Richard Nixon's resignation, and it remains a day of celebration and happiness in my family and for many people I grew up with. Nixon was a larger than life villain who somehow escaped the punishment he deserved. He seemed destined for "rehabilitation" and nearly made it, before expiring in 1994.

He was an iconic figure, to put it nicely. No words I can think of do justice to Nixon and his legacy quite like Hunter S. Thompson's eulogy, published some 20 years ago. I highly recommend it. A h/t to the good folks at TalkLeft.

August 9, 2014

Carve Outs, General Releases, and Sloppy Lawyering

I was reading a recent motion this morning by the City of New York to set aside a plaintiff's verdict when I stumbled across a huge boo-boo committed by plaintiff's counsel. Depending on how the arguments play out, the plaintiff may have just given away a $510,000 verdict (plus legal fees that will likely be somewhere in the six figures). If nothing else, it serves as an object lesson for one way to easily avoid possible malpractice. The name of the case or the attorneys is not important (and no, it's not me).

For those of us that represent clients who are likely to have other claims that may or may not already be in suit, it is particularly useful to inquire about a client's roster of potential claims. Not only may it provide some ammo for negotiation purposes, but because allowing your client to sign a general release without some due diligence is, well, let's say it's not a good idea.

August 4, 2014

Is Change From Within Possible?

In his typically interesting online column today, Len Levitt takes a look at Mayor de Blasio's round-table discussion last week which included participants Al Sharpton, Bill Bratton, and others. Levitt points out that de Blasio sat Sharpton to his immediate left and Bratton on his right, with various mayoral aides and others sitting further away. Symbolically, Levitt notes, the Mayor was presenting Sharpton as Bratton's equal, and greater in importance than the rest of the staffers. So de Blasio was wholly unprepared when Sharpton turned his guns on the administration.

The story takes me back to an old debate that's been raging on the left for generations. That is, can the left better effect change from outside the power structure, or must they work to obtain power and the implement change from inside. While I read Levitt's piece as being an attack on de Blasio's political naivete with respect to Sharpton, and his need to wise up and wise up fast, it suggested to me that de Blasio is struggling with the idea of actually being in charge.

August 2, 2014

Karmic Update

A quick update: back on June 13, I noted that the Massachussets law firm of Connolly, Geaney, Ablitt & Willard was on the verge of going under. It's was notable only because the firm which had made its living foreclosing on people was being kicked out of its office after it had been foreclosed on. It now appears that the firm is done. (See Above the Law and Mass Lawyers Weekly [paywall]).

I don't get pleasure from people's suffering, even those who seek to profit from other's people's misfortune. And I am particularly sensitive to the hardships that the firm's failure would cause its staff. Except that here, according to reports, management was already firing people, not paying its taxes, and failing to pay the firm's health care premiums. Sometimes you get what you deserve.

A Chokehold Killed Eric Garner

News outlets tonight are announcing that New York's Medical Examiner has determined that Eric Garner died from neck and check compression, although his obesity, asthma, and high blood pressure were contributing factors. (Here, for example). In other words, Garner was killed by police officers. So where do we go from here?

August 1, 2014

Stop and Frisk: Nearing The End

Slowly but surely the Stop and Frisk litigation that dominated legal and civil rights headlines for the past year appears to be nearly done. District Judge Analisa Torres flatly rejected the police unions' attempts to inject themselves into the litigation. All that remains is for the unions to appeal, as they have promised to do. There is no doubt that they will follow through, but the far wiser course would be one of reconciliation.

July 31, 2014

Desk Appearance Ticket Can Trigger Mal Pros Claim

Whether the issuance of a desk appearance ticket ("DAT") triggers a malicious prosecution claim is a legal question that has caused more than it's share of confusion and legal wrangling. As of today, however, the answer is definitively Yes. At least if you're in federal court in New York.

July 30, 2014

Rikers Corruption Probe Nets Seven

As discussed here in a July 9 post, New York City's Department of Investigation has been engaged in an intensive and detailed probe into misconduct inside the City's largest jail complex, Rikers Island. As discussed then -- following the arrest of three officers for assaulting an inmate and then lying to cover it up -- DOI Commissioner Mark Peters acknowledged “a pattern of lawless conduct at Rikers that must be brought under control.” Peters promised more to come, and he wasn't kidding.

July 29, 2014

Criminal Sentencing and Judicial Activism

This is a warm and fuzzy story about judicial activism in criminal sentencing. I mean that in the best possible way.

It comes by way of the New York Times and concerns one federal judge's frustration that badly constructed mandatory minimum sentencing laws required him to impose a grossly disproportionate sentence. The law said the sentence was legal and just; basic decency and fairness said otherwise. The story has a happy ending.

July 26, 2014

Roll It Up. Light It Up. Smoke It Up. Sayeth the NY Times.

The headline credit really belongs to Cypress Hill, but we'll give the Times a h/t. In an Editorial, the paper of record called for the federal decriminalization of marijuana. That's a big deal. As the editorial acknowledges, it isn't happening anytime soon, but momentum is growing and legalization feels inevitable.

I'm long past my weed days and I don't have any skin in the game. But, rationally, banning marijuana use makes no sense. It's perfectly legal to smoke cigarettes or drink alcohol, even though, as the Times notes, tobacco and alcohol are worse for your health. Bluntly speaking (yeah, I know), if health were our primary concern, cigarettes (and a host of other stuff), would have been banned ages ago. If we were worried about substance abuse and people getting wasted, we'd still have prohibition. So no, those aren't really issues that have any social traction.

Reining In Civil Forfeiture

Kentucky Senator Rand Paul has sponsored a bill that would substantively limit the federal government's ability to seize private property under civil forfeiture laws. In simple terms, the federal government currently has the right to seize your money, vehicles, property, etc., without arresting you if it can allege that the goods were used in or connected to certain criminal activity. As Radley Balko discusses in a useful article, the feds often work hand in glove with local state agencies to circumvent those pesky state laws meant to limit these noxious property grabs.

Every now and then the libertarians cross over to the sunny side of the street.

July 25, 2014

Stephen Gillers' Unfortunate Choice of Words

Stephen Gillers is a widely respected expert on the legal profession and a go-to person for journalists looking for a quote on lawyers' conduct. For some reason, the New York Times sought out a soundbite from Gillers about the increasing number of civil rights lawsuits concerning unjust convictions and Gillers was careless in his response:
It’s like ants at a picnic. All of a sudden the food’s on the table and here they come.
It's an unfair statement that insults civil rights lawyers and greatly diminishes the grievous harms at issue in these suits. I suspect Gillers, a longtime professor at NYU's School of Law, regrets his choice of words.

It is certainly true that when some lawyers find a new niche that has the potential to be lucrative, others take note, and before you know it, there's a flood of lawyers who are suddenly expert in this new area. That is not what is happening here. Not by a long shot.

July 24, 2014

Criminalize the NYPD Chokehold?

Eric Garner
A proposal was floated today to make it a crime for police officers to use a chokehold like the one used against Eric Garner. My first thought? Unnecessary and useless. Sure, the footage of the assault on Garner was highly disturbing, and the NYPD's apparent refusal to take any steps to rein in the rampant use of the banned chokeholds cries out for political action. But this sort of limited, story of the day legislation misses the point.

What is missing, and what has been lacking for years on end has been political will, not available remedies. There are plenty of legal weapons on the books to punish criminally violent officers and deter future misconduct. There are already laws that outlaw the use of violence, like that employed against Eric Garner. What we do not have is the willingness to use them, and until that changes, criminalizing this specific hold or that particular technique won't ever be more than feel-good grandstanding.

July 21, 2014

Warrants Permit Gov't To Seize Entire Email Account

Can the government obtain a search warrant for particular emails you may have sent or received to look for evidence of criminal conduct? Sure. Can the government execute that warrant on your email provider to get those emails? Of course, that's the point. Can the government use the warrant for certain emails to obtain all of your email correspondence and then sort through it for the ones it wants? The answer to this last question depends on which judge you ask, but according to a ruling last week, the Fourth Amendment offers you no protection.

July 20, 2014

That's A Very Big No-No

Fun story of the day comes from Kentucky, by way of the Lexington Herald-Leader (with a h/t to Above the Law). In short, a prosecutor carried on an affair with a defendant in a felony drug case, impregnated her, and then moved to revoke her probation after she told his wife and ended the relationship. Way to keep it classy, Kentucky.

July 18, 2014

The Killing of Eric Garner

Yesterday afternoon, a group of NYPD police officers surrounded Eric Garner on Staten Island's Bay Street. Apparently, the officers believed Garner had been selling untaxed cigarettes and they planned to arrest him. Garner, an asthmatic  400 pound 43 year-old man, denied the allegations and complained that the officers were repeatedly arresting him without cause. Much of the event was captured on video.

The officers moved in and one grabbed Garner from behind in a deep choke hold. They tumbled to the ground with several other officers jumping in to cuff him. Garner, who, while not initially compliant, was not fighting the officers, called out several times that he could not breathe. The officer did not relent, sinking the hold in deeper, while an officer pushed Garner's head into the sidewalk.

Slowly Garner stopped moving. He became unresponsive. Then he died. The NYPD later issued a statement that he died at a local area hospital of a heart attack. This is certainly possible. He was a large, overweight man who was suddenly assaulted by several men who choked him for an extended period of time. That his body would fail him in response is not surprising. Whatever the ultimate cause of death, wherever the place of death, a man died needlessly and stupidly. Garner left behind a wife, six children, and two grandchildren.

This incident is deeply troubling. As an initial matter, it is far from clear that Garner had been engaged in any criminal conduct. At worst he had sold untaxed cigarettes. The use of force that followed seems to my eyes to be excessive, poorly thought out, and unnecessary.

July 16, 2014

The Slow Fall of Joe Hynes

As many criminal defense lawyers who have practiced in Kings County can tell you, Charles Hynes's office had a reputation for sometimes playing dirty pool and engaging in occasional sharp practice. Not surprisingly, Brooklyn is responsible for more than its fair share of wrongful convictions. On the plus side, Hynes's successor, Ken Thompson, is making a yeoman's effort to investigate possible miscarriages of justice. Better still, attorneys for the wrongly convicted are making headway on their suits alleging that Hynes's office was deliberately indifferent to police and prosecutorial misconduct, including the withholding of information they are required to disclose, such as Brady and Rosario material.

NY Legislature Rejects Unjust Imprisonment Act

In February 2014, as I wrote at the time (here and here), New York Attorney General Eric Schneiderman threw his weight behind a proposed new version of the state's statute permitting those wrongly imprisoned to recover against the State. The amended statute would loosen the stringent qualifiers, making it easier for somebody who was wrongly convicted and imprisoned to recover. According to the New York Law Journal, the proposed bill, although backed by the A.G., died in committee and never made it onto the Senate floor for a vote. Similarly, as previously reported, a proposed Commission on Prosecutorial Conduct was recently shot down by the NY legislature.

As more and more wrongful conviction cases come to light, it becomes increasingly apparent that there are fundamental flaws in our criminal justice system. These include, but are not limited to, the way in which the police are policed and the lack of any prosecutorial oversight and the safety net of absolute immunity for prosecutors. Albany's refusal to acknowledge the obvious, or take any steps to address these issues will only exacerbate these problems.

July 15, 2014

More Money for More False Confessions

Juries love confessions. Sure, DNA evidence is compelling stuff, and it's hard to argue with quality video footage. But there's no getting around the power of an "I did it, I killed her" sort of confession, testified to by a veteran detective, trained in the art of giving testimony. If you believe the witness, it means that the defendant has said out loud that he committed the crime, and, as any person would agree, nobody would own up to a crime they hadn't committed. Yet, as has been written about in this blog before, it is becoming increasingly obvious that people can and do give false confessions.

For instance, the stories of Adrian Thomas, and others (see here and here) are examples of how coercive police tactics can obtain confessions of guilt from innocent people. This is not to say that confessions are meaningless; far from it. But we know too much about the persuasive power of skilled interrogators and general human frailty to not insist on a healthy does of skepticism.

Last week, New York's Appellate Division upheld an award of $5.5 million for a man whose coerced confession caused him to be imprisoned for more than 9 years. He lost his wife, his career, and children. The money, which is a substantial award by New York's Court of Claim standards (as partially reflected by Jabbar Collins's settlement for $3 million for 16 years), does not come close to making up for his losses.

July 14, 2014

Guard-on-Inmate Violence at Rikers

The New York Times today published a lengthy, in-depth report on the seemingly growing incidents of violent assaults by guards on inmates at Rikers Island. The victims are primarily inmates suffering from mental illness. It's a sad indictment of the the City's Department of Corrections and reveals a culture of violence among many COs at Rikers that is widely accepted, if not endorsed throughout the DOC. Michael Winerip and Michael Schwirtz have written a detailed and informative article that shines a bright light into corners most people hope never to see.

July 13, 2014

CJA and §1988 Fee Requests

Having elected to continue his blog -- which comes as a relief, but that's a different post -- U.S. District Judge Richard G. Kopf explains his approach to CJA vouchers. For my colleagues who submit these things, it is an interesting look behind the curtain. For those of us who are not CJA attorneys, it is still an interesting look at how one judge conducts his review of fee requests.

July 12, 2014

Comedic Break: Poor Legal Behavior

A quick question for lawyers and non-lawyers alike: is it a good idea to call your adversary an "asshole" or to warn them not to "try any shit with the Court" and remind them, "don't fuck with me?" Sure, I get that it would be rude and all that, but are there ethical implications? Does it help or hinder your litigation strategy? Will it improve the Court's perception of you and your positions? All of which comes back to the first question, which is whether it's a good idea.

While you're pondering that, let me ask this: would it be wise to memorialize the statements, just so there's no dispute over your precise language? And for good measure, how about the clandestine taping of an adverse expert's visit to your client's office; a good idea?

A federal judge in the Southern District of New York was recently asked to opine on just this situation. Not suprisingly, he was not a fan. (An article on the recent ruling can be found in a New York Law Journal article here; the case is Alexander Interactive v. Adorama, 12 CV 6608, for those with too much time on their hands). My guess is that he was more surprised that comments were written down than he was that they made in the first place.

July 11, 2014

Jabbar Collins Settles State Law Claims

Jabbar Collins, who was wrongly prosecuted and convicted by Brooklyn DA Charles Hynes's office, and who then languished in prison for 16 years, has just settled his claims against the State of New York for $3 million, according to the New York Law Journal. His federal claims against the City of New York, and the prosecutors and detectives who framed him, will continue. This is good news for Collins, who has fought long and hard for this result.

It also may pave the way for the City to settle the federal action. With Hynes out of office, and a new Mayor and a new head of the Law Department running the show, there's no political impetus to keep protecting Hynes's flank. The Collins prosecution was a travesty, and Hynes's refusal to acknowledge it until long after it was derided as shameful in federal court, says a great deal about his legacy. It's time to settle accounts (a la the Central Park Five), and if Mayor de Blasio was the slightest bit sincere when he talked about the need to do what's right for those to whom so much wrong was done, Collins will receive his just due.

July 9, 2014

Rikers Island Investigation Heats Up

New York City's Department of Investigation today arrested a corrections captain and two guards for assaulting an inmate at Rikers Island, beating him unconscious with a baton, and then falsifying records to cover up their misconduct. This was apparently not an isolated incident and more arrests are expected. It took well over 20 months for the arrests to occur, but better late than never.

According to the New York Times, the DOI Commissioner, Mark Peters, stated that the arrests followed a long-running investigation into “a pattern of lawless conduct at Rikers that must be brought under control,” and that “the victims here were not simply the injured inmate but the justice system itself, which cannot properly function when sworn law enforcement officers falsify documents to cover up crimes.” Tough talk. Let's hope there's something to it.

July 8, 2014

Smoking It Up In Brooklyn

New Brooklyn District Attorney Ken Thompson announced today that his office will no longer prosecute people for possessing small amounts of marijuana, with certain exceptions. Good news for potheads, right? Not so fast.

NYPD Commissioner Bratton responded by saying that the police have no intention of rolling back on weed arrests, even though the DA's office won't prosecute. This clash of policies suggests lots of people will still be arrested for smoking pot, brought to their local area precinct, held and processed, eventually transported to central booking, and then, some 15 to 24 hours after their arrest, let out the back door. All in all, not the best use of NYPD resources.

It's an interesting dilemma. On the one hand, Thompson knows how absurd the City's enforcement of marijuana can be, and that the NYPD appears to disproportionately target people of color. On the other hand, Bratton is responsible for enforcing the law in all five boroughs, and he is correct that the law ought to be applied consistently across the board. You can't have something be legal in Brooklyn but illegal in Queens. Moreover, drug legalization should ultimately be a legislative act, not something done by executive fiat.

Thompson takes care to point out that not every Cheech and Chong can legally light up in public. Kids who are 16 and 17 will be shunted off to drug programs, and those who smoke in public places or around children will be charged. Similarly, folks with open warrants, violent felons, suspected dealers, and repeat possession offenders will all be prosecuted.

The exceptions almost swallow the rule. They also beg the question of whether Thompson's plan makes any sense to begin with. If smoking pot around kids is criminal and should be punished, why is it not so bad if you walk down the block and do it? And what is this 'repeat possession' nonesense? The guidelines are so loosey-goosey, whether one is prosecuted may come down to nothing more than which ADA happens to be working in ECAB that night. (ECAB being the unit that makes the initial decision whether to charge).

In the short run, the new policy probably won't have much affect on arrest numbers, and it won't impact on civil rights cases, since the laws banning marijuana are still in effect. In fact, Thompson's announcement may be all, ahem, all smoke and no substance. Still, it's a first step, and not surprisingly, it has come from Ken Thompson.

July 7, 2014

Intakes, Lawsuits and Regrets

I was reading about a very silly lawsuit filed the other day in New York's Bronx Supreme Court and it made me think about intakes and new cases. This may seem like a bit of a tangent, but stay with me here. I wrote not all that long ago about lawyers needing to know how to shut up, and more recently about negotiations as a critical skill. But, if I could impart just one pearl of wisdom to young lawyers, it would be this: be really careful when you're deciding whether to sign up a case.

Taking on a client simply because you don't have a lot of clients is a bad idea. Repeat after me: bad cases are not better than no cases.

That is because bad cases will suck up tremendous amounts of time, particularly if you're going after a deep pocket that can afford to drag you out into deeper and deeper waters. You have to commit huge blocks of uncompensated time to a case that is only ultimately going to be dismissed. That is time you will need to litigate real cases as your practice grows. If your practice doesn't grow, that is time you could spend trying to grow your practice, sleeping on your couch, or doing virtually anything other than litigating a highly contentious losing case on a contingency basis.

What about taking on a case because it might get you some press? If your name is in the papers, your phone will start ringing off the hook immediately, right? Wrong. Whoever told you that left out the part about why your name is in the papers. That part matters.

Case in point: this lawsuit was filed by one Andrew Robert Rector through his counsel, Valentine Okwara, Esq., and names ESPN, Major League Baseball, the New York Yankees, and Dan Shulman and John Kruk. The gist of the complaint is that Mr. Rector fell asleep at a Yankee game that was being aired on ESPN. The cameras caught him snoozing, and Shulman and Kruk joked about it. So Rector did what any aggrieved person would do, he filed a lawsuit demanding $10 million in damages.

I considered posting the video clip and the summons and complaint, but thought better of it. While entertaining, it detracts from my main point, which is that you cannot be seduced by the idea that your client was on television, or that you targets are well known. It's fools' gold. But if you're curious, the clip is here and the pleading is here.

I'm not going to analyze the complaint in detail. Basically, Rector is claiming he was defamed and subjected to an intentional infliction of emotional distress because the commentators poked fun at him. Based on the limited clip, the comments were pretty light. According to Rector they were exceedingly vicious, although, it isn't clear that the commentators actually said any of the things Rector alleges. So maybe they were said elsewhere, or perhaps they are just made up. Straw men are often easier targets.

The bigger point is that this lawsuit appears to be a bit of a loser. I could be wrong. Maybe ESPN, MLB, and the Yankees will cave in and offer Rector hundreds of thousands, if not millions of dollars to make this go away. But I suspect not. My educated guess is that defense counsel will go on the attack and wipe out the suit on motion. And should that that fail, bury Rector and Okwara through the sort of withering and exhausting discovery that often follows a defamation and IIED complaint. This leaves Okwara with a lawsuit that will cost him many dozens of uncompensated hours (because who pays hourly to bring this sort of action?), while scoring him loads of free publicity, albeit as a figure of public ridicule.

A civil rights corollary, in terms of seductive value, often concerns third-party complaints that land innocent people in jail. Cases where innocent people are arrested for crimes they didn't commit but where civilians identify them as the person they saw commit the crime. These are tough cases. As a general matter, the police are not going to be liable for arresting somebody identified by a eyewitness as the perpetrator, since the identification creates probable cause, or at least qualified immunity from suit.

Yet, time and again, lawyers see innocent plaintiffs who suffered, who lost their liberty, perhaps their jobs, because they were wrongly named. It's a real tragedy for the person arrested, but it's not necessarily a case. In fact, it usually is not. That is because the focus at intake should be on the police conduct, not the actual innocence of the plaintiff. Perverse as it may seem, I have done well for people who were apparently (and sometimes admittedly) guilty of the crimes they were arrested for, but have struggled mightily to recover on behalf of the truly innocent. That is because, in the former cases, the officers often engaged in misconduct and then lied to cover it up, whereas in the latter, they were following their witnesses.

This is my long winded way of saying, be careful in intake. Don't fall in love with cases just because they may get you some media attention, or because you think the case will let you go big game hunting. Certainly, don't take on a case because you are suffering through a lull in your practice. You will find little reward for your efforts.

The analysis needs to be more clinical, more detached. Ask, what are the causes of action here and do I have enough facts to plead them, how good is my evidence, how can I prove up the case. If you find yourself having to rationalize the case, or if you catch yourself editing the facts while describing it to a colleague in order to make it seem less crappy, then you have made a serious mistake and it's time to work on an exit strategy.