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.