tag:blogger.com,1999:blog-10290877337213102122024-03-12T23:35:10.391-04:00 Fourth and Fourteenth A CIVIL RIGHTS and CRIMINAL DEFENSE BLOGMichael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.comBlogger177125tag:blogger.com,1999:blog-1029087733721310212.post-77473986751735631232017-05-28T21:45:00.000-04:002017-05-28T21:45:08.913-04:00The Lumer Law GroupIn September 2013, I co-founded Lumer & Neville, a small civil rights and criminal defense firm in New York City. We had some real successes and met all of my personal goals and targets. But life is is not static and things change. Which is my way of saying that I have moved on to form the <a href="http://www.lumergroup.com/" target="_blank">Lumer Law Group</a>.<br />
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The firm will continue to be located in the same office in the City Hall area of Manhattan, and my practice will be very much the same. I am hoping to find the time to resume blogging, and look forward to hearing from you all again.Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-91166650424802463372016-01-24T18:13:00.003-05:002016-01-25T09:34:22.848-05:00Alan Newton and New York's Flexible Principles of Justice<div style="text-align: left;">
<a href="http://1.bp.blogspot.com/--hdFmXRxAsI/VqVXE19aSPI/AAAAAAAAPeM/EkiZ_hswS9E/s1600/e1ac6fe4-3a19-44d7-b889-dbe1f509f670.jpeg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img alt="Courtesy of the Innocence Project" border="0" height="212" src="http://1.bp.blogspot.com/--hdFmXRxAsI/VqVXE19aSPI/AAAAAAAAPeM/EkiZ_hswS9E/s320/e1ac6fe4-3a19-44d7-b889-dbe1f509f670.jpeg" title="" width="320" /></a></div>
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 <a href="http://www.fourthandfourteenth.com/2014/08/stop-and-frisk-nearing-end.html" target="_blank">Stop and Frisk program</a> and settle <a href="http://www.fourthandfourteenth.com/2014/06/selective-justice-and-central-park-five.html%20Done" target="_blank">the Central Park Five case</a>, and he followed through on both counts, even though both policy calls were politically loaded.<br />
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The City engaged in early settlement talks in other serious cases, such as the malicious prosecution and conviction of <a href="http://www.fourthandfourteenth.com/2014/02/the-nyc-comptroller-asserts-his.html" target="_blank">David Ranta</a> and the wrongful death of <a href="http://www.fourthandfourteenth.com/2014/12/the-nyc-comptroller-and-garner-case.html" target="_blank">Eric Garner</a>. 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.<br />
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So why is Alan Newton getting such a screwing from the City?<br />
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<a name='more'></a>To recap, Alan Newton was convicted in 1985 of a Bronx rape and robbery over his protestations of innocence. He repeatedly sought the DNA evidence for testing but it was reported lost by the DA and the NYPD. Many years later it turned up. Subsequent tests conclusively exonerated Newton and his conviction was vacated. By then he had spent 22 years in prison for crimes he had not committed.<br />
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Newton sued New York City and various officials in the NYPD, claiming that the City’s evidence management system was so inadequate that it violated his rights to due process and access to the courts. The jury sided with Newton and awarded him $18 million. The district court set aside the verdict but the ruling was reversed and the jury's verdict reinstated by the Second Circuit Court of Appeals. (See <a href="http://www.fourthandfourteenth.com/2015/03/the-2d-circuits-busy-week-pt-3.html%20Done" target="_blank">here</a> for more details on both the conviction and the civil litigation).<br />
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This was, by all accounts, justice. Newton was wrongly convicted and lost more than 20 years of his life in the state penitentiary. Put simply, he was wronged by the City and he suffered mightily. A jury heard the evidence and assessed damages. </div>
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One might reasonably think that the City, operating under a principle that injustices must be righted, would pay Mr. Newton's his long overdue compensation. But no, sadly the City is now going back to the trial court to argue that $18 million is too much for Mr. Newton. (<a href="http://nydn.us/1nqcVvw" target="_blank">Here</a>). While there is an argument to be made in this regard, it brings to mind my recollection of a comment by the late Hon. John E. Sprizzo while chastising a prosecutor "just because you have an argument to make doesn't mean you should always make it. There's such a thing as judgment."</div>
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To the extent that de Blasio gives the slightest damn about fairness and justice, he ought to instruct the Law Department to withdraw the motion immediately. Moreover, it is obnoxious, to say the least, to enthusiastically agree to pay the Central Park Five a settlement at a rate of $1 million per year while arguing that the Newton jury's assessment of a significantly lower annual rate is so unreasonable the court shouldn't let it stand.</div>
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It is an intellectually dishonest position that makes a mockery of this administration's purported principles and reflects poorly on this Mayor's stated commitment to doing what is right. Pay Alan Newton his money. </div>
Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-48214212764073359762015-12-06T21:31:00.001-05:002015-12-06T21:31:48.387-05:00Laquan McDonald: Same Old, Same Old<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody>
<tr><td style="text-align: center;"><a href="http://2.bp.blogspot.com/-zFoNAtifYUI/VmTrDijy7QI/AAAAAAAAPb0/SuzK_yx9SV4/s1600/bf3d11aa7260340ba3e12172c58d0c3721089e32.png" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" height="172" src="http://2.bp.blogspot.com/-zFoNAtifYUI/VmTrDijy7QI/AAAAAAAAPb0/SuzK_yx9SV4/s320/bf3d11aa7260340ba3e12172c58d0c3721089e32.png" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Cook County Coroner's illustration of Laquan McDonald's wounds<br /> -- courtesy of the New Republic</td></tr>
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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.<br />
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On May 17, shortly after another young black man died at the hands of the police, <a href="http://www.fourthandfourteenth.com/2015/05/freddie-gray-beat-goes-on.html" target="_blank">I wrote</a>:<br />
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<i>The murder of Freddie Gray is a fresh, raw wound. It's one that will either scab over and heal or be gouged wide open by the upcoming criminal prosecution of the officers. Over the past week or two, Gray's death, and the reaction in Baltimore and around the country, felt like it would dominate the news for the months to come. It likely will not. Some other distracting event will occur, and we will lurch forward, leaving Gray and Baltimore behind. We will do so without any meaningful attempts to acknowledge, much less resolve the underlying issues that caused the officers in question to abuse and kill Freddie Gray, or to grasp and address the deep anger and frustration that comes rushing to the surface in the public demonstrations that follow these deaths. As these events unfold, I am struck by a certain sameness.</i></blockquote>
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The police shooting du jour is the October 2014 killing of Laquan McDonald by Jason Van Dyke of the Chicago Police Department, which we heard of now only because the damning video evidence was just released. Sadly, the casual use of lethal force by law enforcement is a ho-hum event. Whether it's the choking out of Eric Garner, the shooting of 12 year-old Tamir Rice, or, in a shooting should have drawn far more attention, the cold-blooded murder of Daniel Saenz (see <a href="http://www.fourthandfourteenth.com/2014/06/handling-mentally-ill-with-deadly-force.html" target="_blank">here</a> for the disturbing video), that police officers are scarily comfortable using deadly force is yesterday's news.<br />
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The video of McDonald's murder is more of the same: a young man walks past and veers away from CPD officers. He's not an immediate threat or a menace to any of the officers. Still, they open fire, sending McDonald to the ground, while they continue to pump bullet after bullet into his body. Make no mistake, there's nothing ambiguous about Van Dyke shooting McDonald: it's homicide.<br />
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What is there to say about officers who are so quick to kill, who can fire without meaningful provocation, and do so without any apparent sense of guilt or contrition? Personally, I am at a loss to explain what I cannot understand. What does deserve discussion, however, is the policing culture that nurtures and protects these officers, that tells them this level of violence is appropriate, that defends them when they are caught, that attacks those that protest, assigning blame for all future rises in crime to those who seek to hold law enforcement responsible for their own criminality.<br />
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Chicago is no different. City Hall had access to the video and knew then, more than a year ago, that their officer killed a man without any justification. Mayor Rahm Emmanuel's duty, as that of CPD Superintendent McCarthy, was to turn it over to prosecutors, to recommend, no, make that demand, Van Dyke's arrest and prosecution. But they did nothing of the sort. Rather, they tried to bury the video as deep as possible, fighting desperately in court to keep it sealed, damn the costs. They released a statement defending the officers and remained silent as the CPD's supporters went even further.<br />
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That commitment to the cover up is the most reprehensible aspect of this tired story of morally bankrupt political cynicism. Van Dyke is being charged with murder -- not because DA Anita Alvarez has any political backbone, but rather despite its absence. He should have been charged a year ago and is being prosecuted now as a matter of necessity and because it's the only play left for an administration with no other cards to play. Alvarez was duty bound to prosecute based on the video evidence known to her two weeks after the shooting. She, like Emmanuel and company, bet on the cover up. They put out a falsified version that backed Van Dyke and stuck with it, pretending all the while that they were not aware of that which they most certainly knew.<br />
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Which takes us the charges that are missing against his colleagues. Van Dyke's partner and fellow officers on the scene joined in his fabricated version of events. They swore at the time that McDonald was threatening Van Dyke, waving his knife while coming towards the officer in a threatening manner. They painted a picture of McDonald as a dangerous man who left Van Dyke no choice but to fire. It was a lie, of course, a fiction deliberately crafted by the officers to cover up Van Dyke's shooting. The powers that be knew this too but didn't care. That their officers violated the law as well as their oaths and duties was an inconvenient truth; the only important thing was to figure a way out. Once the courts ordered the video's release, there was little choice left but to suddenly seize the moral high ground. Figuring the best defense was a good offense, Emmanuel fired McCarthy and Van Dyke was charged. Craven politicking at its worst.<br />
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The end of this sordid story is far from written. It is not clear yet what will become of the others, of the officers who lied through their words or by their silence, or their supervisors who knew but remained quiet? It seems inevitable that more heads will roll; McCarthy had to go if only to keep the wolves from the Mayor's door. Van Dyke had to be charged if only to keep up the pretense that DA Alvarez has a passing interest in justice. More bodies will be needed and those who most blatantly lied will be next. But it will not be nearly enough.<br />
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Reflexive acceptance and support for police brutality, even when deliberately fatal, has long been a City Hall staple. Accountability up the chain is critical if there is to be any real hope for meaningful change, if these killings are to become the rare departure from the norm that ought to be. The federal government will investigate, just as it always promises to do when local police commit crimes under the approving eye of the local government. The investigations drag on until public interest has waned completely and there is nobody left to notice that nothing will be done. Yes, Rahm Emmanuel was a national player, but if we are serious about addressing this pattern of police violence, the federal government must act swiftly to delegitimize the post hoc political conduct. Holding senior officials responsible for the cover up, as well as the officers involved, is essential. </div>
Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com1tag:blogger.com,1999:blog-1029087733721310212.post-30307343031414952842015-11-08T11:14:00.001-05:002015-11-08T11:14:50.939-05:00The Right to Remain Silent in a Civil Context<div class="separator" style="clear: both; text-align: center;">
<a href="http://2.bp.blogspot.com/-WMrcVBz_Z7Q/Vj9y2TutMxI/AAAAAAAAPZo/t3P60g0uZaY/s1600/6a011571da2408970b01bb07ac1383970d.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="289" src="http://2.bp.blogspot.com/-WMrcVBz_Z7Q/Vj9y2TutMxI/AAAAAAAAPZo/t3P60g0uZaY/s320/6a011571da2408970b01bb07ac1383970d.jpg" width="320" /></a></div>
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.<br />
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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.<br />
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In <a href="http://www.ca2.uscourts.gov/decisions/isysquery/d5fe6d2f-7f7c-44f8-b926-c4dfd36ea44b/4/doc/13-3483_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d5fe6d2f-7f7c-44f8-b926-c4dfd36ea44b/4/hilite/" target="_blank">Uzoukwu v. The City of New York</a>, Afam Uzoukwu was sitting on a park bench near a playground where the park rules stated that only adults with children in their custody could be present. Two cops approached him and asked if he had kids with him and so forth. By all accounts, Uzoukwu, whose children were playing in the park, did not respond, which the plaintiff attributed to having his headphones on and not hearing the cops. One of the officers testified that he tried to get plaintiff's attention by taking his food and throwing it out. According to the officer the man began to yell and the officers then arrested him for OGA (obstruction of governmental administration) and disorderly conduct. He claimed that he did not raise his voice the officers began to strike him. Notably, he was not charged with being in the area without children in his custody, indicating that the officers knew that he was not committing the offense for which they first approached him.<br />
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In any event, the criminal charges were dismissed and he sued. At trial, during deliberations, the jury asked specifically whether "refusal to acknowledge/respond to police questions [is] considered obstruction of governmental administration." The district judge said not strictly speaking, but the jury should look at the "totality of the circumstances." The jury then found for the officers.<br />
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The Court of Appeals reversed, finding that the law in New York expressly stated that a refusal to answer questions was not OGA, period, and that the jury should have been told this unequivocally. The case has been sent back for a new trial.<br />
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In a narrow sense it's a good decision because it clarifies the limited reach and scope of OGA, which the NYPD tends to overcharge too often. It also underscores the larger problem, which is state of relations between the police and poorer communities and people of color. The entire episode was entirely avoidable. Sure, the police were justified in asking Uzoukwu if he had children with him, but the fact that it devolved into violence and an arrest is absurd. City lawyers expended hundreds of hour defending it, and the trial and appellate courts more time supervising the litigation. The likely outcome now is a settlement to avoid a second trial, and all of this because of how cops and civilians communicate.<br />
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I expect plenty of people will say that Uzoukwu should have just answered their questions, which is not an unreasonable thought. But he has testified that he did not hear them initially and they became violent when he did not initially respond. In any event, the police initiated the contact and had control over the tenor of the conversation. There was no need for this simple exchange to get out of hand.<br />
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Put simply, if you want respect, you have to give respect. The officers, who have to acknowledge what decades of race-based policing have done to their relationship with the people they serve, have to adjust accordingly; this is not a police state yet, and we have the right to remain silent, even when it might be in our better interest to speak up. Had the matter been handled with a touch more patience and a thicker skin, a lot of time, money, and aggravation could easily have been saved.Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com1tag:blogger.com,1999:blog-1029087733721310212.post-30846139517865077972015-10-15T17:37:00.003-04:002015-10-15T17:37:44.160-04:00Expungement on the Horizon?<a href="http://3.bp.blogspot.com/-sFRBrFxX7Qg/ViAYKmNaoXI/AAAAAAAAPX0/tmmfg6BwZSc/s1600/EDNY%2BCOURTHOUSE.JPG" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="200" src="http://3.bp.blogspot.com/-sFRBrFxX7Qg/ViAYKmNaoXI/AAAAAAAAPX0/tmmfg6BwZSc/s200/EDNY%2BCOURTHOUSE.JPG" width="196" /></a>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.<br />
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As the <a href="http://www.newyorklawjournal.com/id=1202739815446/US-Judge-Says-Its-Time-for-a-Change-in-Expungement-Law#ixzz3odiO7fo1" target="_blank">NYLJ reported today</a>, Judge Dearie recently issued a decision in <i>Stephenson v. United States</i>, 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.<br />
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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:<br />
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<i>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. . . .</i><i>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.</i></div>
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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.<br />
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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.Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-40641459369880300352015-09-28T09:04:00.000-04:002015-09-28T09:04:00.207-04:00Practice Tip: Beware District Court Bundling Rules<a href="http://2.bp.blogspot.com/-z5JhWa17n8I/VgiRbM9apkI/AAAAAAAAPWc/TiJiJTgSkE0/s1600/circseal2.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="200" src="http://2.bp.blogspot.com/-z5JhWa17n8I/VgiRbM9apkI/AAAAAAAAPWc/TiJiJTgSkE0/s200/circseal2.jpg" width="200" /></a>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.<br />
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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.<br />
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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.<br />
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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.<br />
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Imagine the following: a party loses at trial and judgment is entered. The 30 day clock begins to run. The losing party advises the district court that it intends to move under FRCP 59 or 60 for post-trial relief (or, if such a motion was timely made and denied, a motion for reconsideration) and the district court sets a briefing schedule which call for the motion to be served within 30 days of the entry of judgment. The court's individual rules require that the moving, opposition, and reply papers all be filed together at the close of the briefing schedule, which is long past the 30 day deadline to file a notice of appeal, even when the permissible 30 day enlargement is taken into account. The motion is then denied and still-losing party immediately files its notice of appeal.<br />
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The winning party argues that the notice of appeal is too late and the Court of Appeals lacks jurisdiction to hear the appeal. The losing party argues that the motion was indisputably drafted and served within the allowable period of time, and that the only reason it wasn't actually filed was because the district court's individual rules forbade it.<br />
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What might the Second Circuit Court of Appeals do, you ask? Luckily, we now know the answer. In <i><a href="http://www.ca2.uscourts.gov/decisions/isysquery/a3fd23db-1df7-4f8e-9a55-dcca3e0216c5/12/doc/14-723_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a3fd23db-1df7-4f8e-9a55-dcca3e0216c5/12/hilite/" target="_blank">Weitzner v. Cynosure</a></i>, the court concluded, in relevant part, that the losing party was out of luck. Noting first that the deadline was jurisdictional, the court stressed that the appellant had not made any effort to resolve the conflict between the judge's individual rule and the congressionally mandated FRAP 4. Presumably, had it sought permission to timely file its motion, any subsequent denial by the district court would have provided an independent basis for relief. But since the appellant made no such effort, it was essentially the same as an unarticulated trial objection. The decision was made all the more easy, the court reasoned, by the appeal's general lack of merit.<br />
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The court sternly closed with, "We very strongly recommend that district courts promptly review their individual rules and practices so as to eliminate the unacceptable risk that litigants will forfeit rights because of observance of rules promulgated by individual judges, especially with regard to rules that are of questionable consistency with the governing provisions of the federal rules and statutes." In other words, you district judges should know your place. One wonders if this public admonishment followed a prior private suggestion that did not achieve the anticipated result.<br />
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As for us practitioners, it is a reminder to think carefully about our post-trial practices, and to never lose sight of filing deadlines. Where conflicts arise, resolve them in favor of the senior authority whenever possible. Whatever you do, never assume that merely following one judge's rules will necessarily absolve you of blame for losing sight of the FRCP or FRAP. As the Odd Couple has taught us, such assumptions makes fools of all concerned.Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com5tag:blogger.com,1999:blog-1029087733721310212.post-25034858732936886232015-09-26T13:26:00.001-04:002015-09-26T13:26:45.441-04:00Protecting Prosecutors<br />
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Several regional sections of New York's Commission on Statewide Attorney Discipline met recently to discuss, in part, whether an independent Commission on Prosecutorial Misconduct should be formed to address the growing public recognition that some prosecutors (and, more importantly, prosecutorial offices) were cutting constitutional corners to gain convictions, with disastrous consequences. (NYLJ with pay wall <a href="http://www.newyorklawjournal.com/home/id=1202738274421/Report-Offers-Compromise-for-Prosecutor-Misconduct?mcode=1202617075062&curindex=1" target="_blank">here</a>). It was a collision of sorts between competing interests and voices. It's not hard to guess who won.<br />
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From one direction came the proponents who saw such behavior as a real threat to due process and public confidence in the criminal justice system. Treating such misconduct as serious was a critical step towards eliminating it, and the first step would be the public recognition afforded by the creation of a state-wide commission. Barreling down the main avenue at full tilt from the opposite direction was the system's constant desire to insulate itself from public attack, to limit the legal repercussions to private scoldings whenever possible. These opponents, claiming budgetary concerns, joined hands with the bar associations and those who believed it best to protect state actors generally from the harsh light of day, and to ensure the safety and sanctity of the status quo.<br />
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Just like any collision between a large truck steaming downhill without brakes and a small fiat sitting sideways in the intersection, the public's interest in a criminal justice system that requires prosecutors to exhibit respect for basic constitutional principles was promptly obliterated.<br />
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Instead, the Commission recommended that prosecutorial misconduct cases be referred to one of the four existing disciplinary panels already in place for complaints about lawyer's conduct generally. These four committees are divided geographically across New York. For instance, claims against lawyers in New York City and the surrounding counties are referred to either the First or Second Department, whereas lawyers in the western or northern parts of the state are governed by the Third or Fourth Departments. An overseer would be appointed to make some passing attempt at equalizing the approach and treatment of the four committees. In other words, gross overstepping might be subject to punishment, but only after a long, drawn out process that made clear that the miscreant under the microscope was but a rare, rare specimen.<br />
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It's a shameful exercise to maintain business as usual and protect the county prosecutors from embarrassment. As a general matter, it's a well-accepted fact that the disciplinary process varies widely from one committee to the next. What might land you in hot water one place will be promptly waved off elsewhere. Having a misconduct czar might help somewhat, but only in terms of punishing the occasional scapegoat. That is to say, once in a while somebody will blatantly withhold Brady material or something similar, valuing the potential conviction over the prosecutor's overarching duty to uphold the constitution and to do justice. That prosecutor runs the risk of being trotted out for a public hanging if only to prove that the system works. The larger problems, county prosecutors who had no respect for their duties or the law, politicians who valued the press release over all else, and the like, will remain untouchable, barring an avalanche of bad clippings with a stench so overpowering it cannot be ignored -- think, Charles Hynes. In other words, business as usual.Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-46420328293539741702015-09-10T14:45:00.001-04:002015-09-10T14:45:15.901-04:00Bratton's One-Time Apology Tour<a href="http://1.bp.blogspot.com/-m9G8gydPw4U/VfHO6WidU5I/AAAAAAAAPUw/gmfiS-7NWQc/s1600/brat322.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="112" src="http://1.bp.blogspot.com/-m9G8gydPw4U/VfHO6WidU5I/AAAAAAAAPUw/gmfiS-7NWQc/s200/brat322.jpg" width="200" /></a>Yesterday members of the NYPD saw a black man they thought was a suspect in an identity theft crime, rushed him, grabbed him, and slammed him to the sidewalk. He was cuffed and held on the scene for about 15 minutes. Nothing unusual there.<br />
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Except it turns out that they had the wrong guy. Still nothing unusual. Except that the black man in question was retired professional tennis player James Blake, who at the height of his career was ranked fourth in the world. (<a href="http://nydn.us/1UC1UFW" target="_blank">NY Daily News</a>). Now that is a little different.<br />
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What was really different, however, was the NYPD's response today. The officer responsible was summarily placed on modified duty, and Commissioner Bratton actually issued a personal public apology, saying, in part, that the incident "should not have happened." Video available on <a href="http://espn.go.com/tennis/story/_/id/13623034/new-york-police-department-commissioner-william-bratton-apologizes-james-blake" target="_blank">ESPN's site</a> shows Bratton giving his department a public spanking.<br />
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Somewhere somebody's saying, hey that's some progress. No it's not. This sort of thing happens every day throughout the City. Officers manhandle people, treat them without respect, and strip them of their dignity, even when the people they're abusing haven't done anything wrong or the behavior is grossly excessive to the situation. Let me say that in my experience, the NYPD never apologizes. I don't mean they usually won't, I mean they never will. Every now and then individual officers will whisper an apology in private, though they would deny it if asked. Even when the City is forced to pay out hundreds of thousands of dollars, millions even, to settle a lawsuit, they will not do so unless they can continue to deny responsibility.<br />
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So why now? Because Blake is a well known, articulate, former athlete with plenty of access to sympathetic friends in the media. He is a potentially damning testimonial to the NYPD's baser instincts. It's not a question of money; I'd actually be surprised if he files suit. The only currency here is a public apology and Bratton smartly decided to pay sooner rather than later.<br />
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I have no problem with the apology itself. But let's be clear: it's a one-time event, offered without sincerity or any remote possibility of subsequent remedial action. It's a meaningless gesture that will likely let the NYPD off the hook way too easily.Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-55922947229334279032015-09-04T12:11:00.000-04:002015-09-05T11:27:38.094-04:00The Non-Story that is Kim Davis<div class="separator" style="clear: both; text-align: center;">
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Some arguments are so facially silly, so intellectually vacuous, that it's hard to understand how's there's an argument in the first place. Enter Kim Davis, the Kentucky county clerk who believes laws she says conflict with her religious views should not apply to her. A ridiculous position unworthy of serious discussion? You bet.<br />
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Yet, here we are; debating whether Kim Davis's supposedly deeply held religious beliefs vests in her the discretionary authority to decide which court orders ratified by the Supreme Court will be enforced, and which won't. What about a constitutional obligation that expressly requires her to issue marriage licenses to couples of legal age regardless of gender? No, that's for heathens heading to the lake of fire and she's not having it.<br />
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The argument is plainly baseless. If Ms. Davis feels so strongly about same-sex marriage that she cannot bring herself to issue gay couples marriage licenses even though issuing marriage licenses is part of her job, she should get a new job. What's next for the homophobic clerk? Refusing to enter real property deeds for gay couples? That's absurd, do your job or get a new job.<br />
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We are, as nobody can dispute, a nation of laws. We have rules in place that govern our conduct, and a system for resolving conflicts over what those laws mean and how to apply them. Imagine if we were to agree that we need not follow these laws if we can articulate some subjective faith-based reason. Let's go one step further and assume that the religion in question is any religion other than Christianity.<br />
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<a name='more'></a>For instance, picture an ultra-orthodox Jewish bus driver who has decided that he won't operate the bus <a href="http://www.timesofisrael.com/police-arrest-man-who-ordered-woman-to-back-of-bus/" target="_blank">if female passengers won't move to the back of the bus</a>. From his perspective, the sexes must be separated and it would be unthinkable to participate in a process where men and women were sitting together in the front of the bus. In accordance with his beliefs, whenever women refuse his instruction to move to the back of the bus, he pulls over and refuses to drive until they comply. If all that matters is that he believes to do otherwise would put him in conflict with his religious beliefs, one cannot force him to allow women the same rights on his bus as the men, no matter what the Equal Protection Clause might say, much less a host of state and local laws.<br />
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It's just as fair and logical as it is to allow Ms. Davis to modify the law to accommodate her claimed belief that participating in the gay marriage process would make her complicit in violating God's law as she sees it, right?<br />
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No, it's not. Not in any sense. Putting aside the ignorance and bigotry that underscore the belief at issue -- religious bigotry is still bigotry -- the notion that we must show deep respect for all sincerely held beliefs because they are religious and sincerely held is the sort of simple-minded thinking that would legitimize all sorts of awful things, such as systemic rapes and beheadings in the name of God. The point at hand is extremely simple. If your job requires you to do things you find offensive, get a new job.<br />
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Not that it matters, but I suspect that her only deeply held belief is rank homophobia, colored by the vision of GoFundMe and Joe the Plumber riches and fame. As news accounts indicate, the devout Ms. Davis, a woman who says she lives her life in accordance with God's law, was sleeping with her future third husband while married to her first husband, and then somehow convinced her to adopt the resultant children. She is now on husband number four. (See <a href="http://www.salon.com/2015/09/02/kim_davis_four_marriages_the_ugly_self_righteousness_of_the_saved_that_fuels_her_marriage_license_refusal/" target="_blank">here</a> and <a href="http://m.snopes.com/kim-davis-married-four-times/" target="_blank">here</a>) Luckily for her, the court clerks agreed to issue her these divorces regardless of His views on the subject.<br />
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So there you have it: Kim Davis, a county clerk in Kentucky who ran for office and then took an oath to uphold the laws of the land and the Constitution of the United States, is sitting in jail because she categorically refuses to obey a lawful order of a United States District Judge that she do her job as directed, but won't simply resign, even though <u>that</u> would have been the principled thing to do.<br />
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Is she a martyr? Hardly. What she ought to be is insignificant and unemployed.<br />
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<br />Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-69197348973523877822015-08-02T15:31:00.002-04:002015-08-02T15:42:22.079-04:00Bill Lewinski and the Always Justifiable Police Shooting<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
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The New York Times has <a href="http://nyti.ms/1Id6KjK" target="_blank">recently run a profile</a> of William J. Lewinski, the psychology professor law enforcement turns to when it needs a justifier for the unjustifiable. It is an interesting look at how police defendants pitch shoot-first advocacy as neutral science. Fleeing man shot in the back? It's a good shoot. Unarmed man shot in car? That's also a good shoot. Unarmed man with his hand in his pocket shot as he complies with order to remove hand from pocket? You know that's a good shoot. Officers who change their testimony about how and why they shot? Again, no problem for Lewinski, whose pseudo-scientific approach appears sufficiently malleable to suit any fact pattern.<br />
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As Matt Apuzzo succinctly notes in his Times' piece:<br />
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Broadly speaking, Lewinski's testimony offers two avenues of escape from seemingly bad shootings. One is what I consider the Rodney King approach. In that case, video evidence showed officers surrounding King, who was lying prone on the ground. The officers repeatedly and viciously struck King again and again. The defense attempted to deconstruct the video; slowing it down until it lost all meaning. Pointing to slight movements (such as King lifting his head or shoulder while lying on the roadway) that were visible only when the playback was shown at a frame by frame clip, the defense argued that the officers were reacting reasonably to a perceived threat. The jury acquitted.<br />
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<a name='more'></a>As the Times article discusses in greater length, Lewinski approaches shooting scenarios with the same sort of thinking: isolate independent actions to establish the potential speed of particular actions -- such as pointing a gun and then turning away, or drawing a weapon in a car -- and then extrapolating the officer's potential assumptions. This allows Lewinski to avoid opinions about how the officer reasonably reacted to an event that he perceived was happening although it did not actually happen, or had already happened. Comparing it to hitting a baseball, Lewinski theorizes that officers have to commit to swinging before knowing with certainty whether it's a good pitch to hit. It's a catchy theory that would legitimize using deadly force whenever officers think that someone may soon begin the process of using force against them.<br />
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Notably, if not out of necessity, Lewinski does his own research and draws his own conclusions while steadfastly avoiding the peer review process critical to actual science. He provides research and training to local and federal officers and agencies, and is their go-to-guy when something goes awry. In other words, he has created quite the niche for himself, even though, as Apuzzo points out, scientists don't believe that his "science" is at all scientific.<br />
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Lewinksi's second defense theory is based on a theory called "inattentional blindness." It's worth pointing out that Arien Mack, one of two psychologists credited with thinking up the term, is quoted in the article as saying "I hate the fact that it’s being used in this way."<br />
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This theory is grounded on the idea that when the brain is so focused on one particular event, it blocks out all other data. Human nature, says Lewinski, causes people to devise facts to fill in the blank in one's conscious memory. Lewinski often falls back on this theory when independent evidence conclusively demonstrates that the officer's factual statements are inaccurate. Many people would call this sort of thing lying, but not Lewinski. Where it was undeniably clear that the officer's version was untrue, Lewinski would argue that his memory was simply overwhelmed by the enormity of one aspect of the circumstances. Or, as Roger Clemons might have said, even when the officer appears to be lying, he's just honestly "misremembering."<br />
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Put differently, the officer's testimony is always to be believed, when it fits. When it doesn't, then it's an honest mistake. Or, as California-based civil rights attorney John Burton says,<br />
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<i>Whenever the cop says something that’s helpful, it’s as good as gold. But when a cop says something that’s inconvenient, it’s a result of this memory loss.</i></div>
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Burton pinpoints Lewinski's bias, which may be better termed as an agenda. A hired gun whose mission is to clear the officer, Lewinski assumes the truth of corroborating statements while rejecting those that don't fit the narrative. Much like a political talking head on a Sunday news show who represents a position, person, or party, he is not there to further the search for truth, he's there to sell an outcome and his tools are sophistry, mock science, and the public's desire to believe in their officers.<br />
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Given Lewinski's growing prominence in legal proceedings surrounding police shootings, a most unpleasant growth field, his tactics and arguments are worthy of closer scrutiny and a thorough scientific vetting.<br />
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<br />Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-41364625192916092592015-07-18T11:50:00.000-04:002015-07-18T12:03:12.787-04:00The NYPD and Fudged FiguresWhat happens when police officers are both evaluated based on a statistical analysis of criminal activity taking place in their precinct and given primary responsibility for keeping track of said activity? Give yourself a gold star if you guessed that some officers might play a little fast and loose with the figures.
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<a href="http://www.dnainfo.com/new-york/20150717/mott-haven/19-officers-nypds-40th-pct-face-charges-for-underreporting-crime-stats" target="_blank">It was reported</a> yesterday that NYPD Commissioner Bill Bratton has announced the transfer of the commanding officer of the 40th precinct in the Bronx, along with a lieutenant, eight sergeants, nine officers, and one detective, as a result of under reporting of criminal complaints. This statistical manipulation serves a multitude of purposes, the most obvious of which is to show an artificial decline in the crime rate within the precinct.</div>
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Statistics are a critical component of crime fighting in the NYPD, which relies heavily on its CompStat program to track criminal activity throughout the city with great specificity. These analytics allow the NYPD to adjust its tactics and personnel deployment in sync with the activity it is seeking to suppress. Speaking generally, analytics are a useful tool for gaining insight into whatever business you are in, and policing is no exception, providing of course that your statistics are accurate.</div>
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As a side note, such a heavy emphasis on statistics comes with a price. The NYPD, understandably, wants its officers to meet certain numerical requirements. Yes, I know the department routinely denies that there are "quotas" but the evidence of required "activity levels" is compelling. By requiring numbers, quality is often sacrificed for quantity. Whether it's patrol officers scrambling to meet their monthly summons and arrest figures or detectives looking for informants to sign up, search warrants to write, or bodies to arrest, the need to create a statistical body of work often pushes officers into making baseless arrests or engaging in related misconduct. </div>
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In this regard, it is not surprising that the NYPD rewards arrest numbers without regard for what happens to those arrested. In many cases -- say, a search warrant execution by a narcotics team -- a small amount of drugs may be found on someone's person, but the officers proceed to arrest everybody in sight. Prosecutors often decline those prosecutions or dismiss the cases shortly thereafter (which sometimes results in civil lawsuits). Such outcomes matter not to the NYPD, which does not distinguish between arrests that lead to felony convictions and those that prosecutors summarily reject without bothering to charge anyone. That is to say, it is the arrest numbers that matter most, not their validity.</div>
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All of this means that the bottom line numbers offered up by the NYPD should be treated with no small amount of skepticism. Whether it is the amount of crimes supposedly taking place, or the number of arrests being made, these numbers often lie.</div>
Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-84817189596030521512015-07-18T10:55:00.006-04:002015-07-18T10:55:57.522-04:00Video of Police Shooting in Gardena ReleasedIn June 2013, in Gardena, California, local police officers shot unarmed brothers Ricardo Diaz Zeferino and Augustin Reynoso as they stood in front of the officers. Zeferino was killed and Reynoso left with a bullet lodged next to his spine. The incident was captured from two different video cameras, which demonstrate the absence of any justifiable basis for the officers' decision to open fire.<br />
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As detailed in <a href="http://www.latimes.com/local/lanow/la-me-ln-federal-judge-orders-release-of-videos-20150714-story.html#page=1" target="_blank">this story in the L.A. Times</a>, the local district attorney chose not to file charges against the officers, stating that Zeferino was seen reaching for a weapon. A civil lawsuit followed during which the video was released subject to a protective order (meaning that the lawyers could not use it outside the litigation). The plaintiffs' lawyers argued that the video showed a baseless shooting of two unarmed men. Gardena continued to argue that the video showed the officers responding to a man reaching for a weapon in his waistband. Ultimately, Gardena paid $4.7 million.<br />
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The L.A. Times, Bloomberg, and the Associated Press, sought the release of the video. Last week United States District Judge Stephen V. Wilson granted that request. Defense attorneys raced to the Court of Appeals for a stay of the order but not fast enough to prevent its release.<br />
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This is the video that Gardena did not want the public to see.<br />
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<br />Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-50250415879668185092015-07-17T13:41:00.003-04:002015-07-17T13:41:52.648-04:00Garner Settlement: Good for All Concerned<a href="http://2.bp.blogspot.com/-5MbEjt9N0uo/Vak6nGzYk0I/AAAAAAAAO9w/1V6OgTdMGUo/s1600/eric-garner-nypd-chokehold-550x469.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="170" src="http://2.bp.blogspot.com/-5MbEjt9N0uo/Vak6nGzYk0I/AAAAAAAAO9w/1V6OgTdMGUo/s200/eric-garner-nypd-chokehold-550x469.jpg" width="200" /></a>The family of Eric Garner recently agreed to settle the estate's claims against the City of New York for $5.9 million. What is perhaps most notable about the agreement is that, once again, the deal was brokered on behalf of the City by Comptroller Scott Stringer. Whatever one's thoughts about the dollar amount, it's a good deal for all sides. The biggest beneficiary? Possibly Mayor Bill de Blasio.<br />
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The entire City of New York needed this case to be resolved quickly. A protracted legal and public relations battle would have been a disaster and could easily have turned into something very, very nasty. It was important that all sides come together and acknowledge what had happened and make a public showing of contrition. That it happened prior to any actual litigation worked out just perfectly for de Blasio, who must have been dreading this lawsuit.<br />
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In NYC's government, the public fisc is overseen by the Comptroller, who is an independently elected official outside of the Mayor's command. As the CFO for the city, the Comptroller must approve any and all municipal settlements of any size. At the same time, all litigation against the City is handled by the Law Department, which is under the Mayor control. Thus, once a case is actually filed, all negotiations with plaintiff's counsel are carried out by an assistant corporation counsel, who reports back up a lengthy line of command at the Law Department. While the Comptroller still must authorize any settlements, the Mayor is ultimately the public face of the defense.<br />
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However, there is a brief moment in time when plaintiffs can sometimes negotiate directly with the Comptroller; this occurs after a notice of claim is filed (i.e., a form setting out a person's intention to sue the City) and before the lawsuit is commenced. The Comptroller routinely settles small matters prior to suit, but rarely becomes involved in larger cases, albeit <a href="http://www.fourthandfourteenth.com/2014/02/the-nyc-comptroller-asserts-his.html" target="_blank">with some exceptions</a>.<br />
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That is what happened here. Garner's family was on the cusp of filing their lawsuit, an event that would trigger the Law Department's involvement and make it impossible for the Comptroller to directly negotiate a settlement. The parties ultimately agreed to the $5.9 million figure to resolve the City's exposure.<br />
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It's a good outcome for the Garner family for a number of reasons. The most obvious are immediacy and closure. The litigation would likely have been painful and ugly. For instance, a fundamental question would have been Garner's life expectancy and earnings capacity, which was not remotely close to $5.9 million. A protracted battle would drag Eric Garner's family through the mud over and again for at least several years, with no guarantee that they would ultimately receive as much or more as what was on the table now. The amount paid fairly compensated the family and permitted them to move onward and forward, and to do so without undue stress or delay.<br />
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It's a good outcome for the City as well. First and foremost, the settlement closed out an ugly chapter in the NYPD's history of racial conflict with the general public without needlessly ripping open the still near-raw wounds. A vigorous defense would most certainly highlight and inflame the ongoing conflict between the NYPD and communities of color. Avoiding such a necessarily nasty and sensitive battle by acknowledging wrongdoing (denials of liability in the paperwork notwithstanding) is a healthy first step towards reconciliation.<br />
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From a dollars and cents standpoint, the settlement saves the Law Department thousands of labor hours. Moreover, while the compensatory damages claim might be somewhat limited by Eric Garner's low earnings potential, there was a high likelihood of significant punitive damages. Consider this: that Daniel Pantaleo employed a choke hold is evident in the video. That such choke holds have long been barred by the NYPD is also beyond dispute. Finally, there is ample evidence that officers have continued to use these banned holds without any reprisals from the NYPD, which has resulted in the continued use of these holds. There is no telling what an angry jury would do with this info in terms of assessing punitive damages.<br />
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Finally, it's the best possible outcome for Mayor de Blasio. The mayor ran for office on a platform that was critical of the NYPD's race-based policies. His actions since the election have harmed his relations with the rank and file, causing him to be viewed in certain circles as "anti-police." Had this case been litigated by the Law Department, de Blasio would have been in an impossible position. If the City lawyers attacked the plaintiff, de Blasio would be alienating a large chunk of his constituency. A less than vigorous defense (or a settlement down the road) would leave him open to further attacks by police supporters. In short, every action would antagonize, every statement would inflame, and de Blasio could only lose ground with voters.<br />
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By settling, Stringer has helped the parties and the city begin a healing process that is desperately needed, guaranteed the Garner family just compensation, and saved de Blasio from what would have been a political and public relations nightmare by taking the mayor off the hook entirely for the settlement. It's a win all around.Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-47859186459991845312015-07-11T13:44:00.000-04:002015-07-11T13:44:22.081-04:00NYPD Stop and Frisks on the Decline<a href="http://2.bp.blogspot.com/-7_Be0VVEgyc/VaFSOU6gjAI/AAAAAAAAO9I/ApEDAxmvetY/s1600/20120602_USP003_0.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="200" src="http://2.bp.blogspot.com/-7_Be0VVEgyc/VaFSOU6gjAI/AAAAAAAAO9I/ApEDAxmvetY/s200/20120602_USP003_0.jpg" width="176" /></a>According to <a href="http://www.newyorklawjournal.com/id=1202731776876/Monitor-Suggests-Reasons-for-Decline-in-NYPD-StopFrisk#ixzz3fbLAeAlY" target="_blank">a recent article in the NYLJ</a>, the number of NYPD stop and frisks has been in a steep decline since 2011, when the police logged 685,724 events. By 2014, officers recorded just 46,235 such stops. That the drop off has been dramatic is obvious; the underlying reasons a bit less so, although the newly appointed federal monitor, Peter Zimroth believes it may be the result of uncertainty and a lack of understanding on the part of the officers.<br />
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It's easy enough to ascribe that to inadequate training, but that explanation is too facile. The reality is that race is perceived by many officers as a perfectly legitimate reason to suspect criminality is afoot, particularly when we are talking about young black men in certain neighborhoods.<br />
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<a name='more'></a>Let's back up a moment. Lost in the hullabaloo over the stop and frisk litigation is that at no point did any court determine that policy itself was impermissible or unconstitutional. Generally, there is nothing wrong with stopping and frisking a person when an officer has a reasonable suspicion that criminal activity is afoot. The problem with the NYPD's version of the policy is that the department was targeting people based on race without regard for whether there was any independent basis to conduct the stop and frisk. Being young, male, and black, was often enough evidence of criminal activity for some officers to seize and search people.<br />
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The ultimate settlement of the litigation was grounded in the idea that officers could keep stop and frisk in their arsenal of tools, but had to employ it within constitutional parameters. In other words, there had to be a legitimate factual reason to stop and frisk a person. What exactly those were, however, was seemingly unclear to officers.<br />
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Zimroth has been quoted as saying:<br />
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[<i>O]fficers are not confident or have been misinformed about, among other things, what they are authorized to do under the law, what their supervisors expect of them, what their personal legal liability might be and under what circumstances discipline will be administered. We do not know the extent to which officers may be declining to make lawful, appropriate stops because of these uncertainties. To the extent it is happening, though, it is not a healthy state of affairs for police officers or communities.</i></div>
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This suggests a problem easily remedied by additional training, reinforced by occasional roll call lectures and reminders. If the officers dutifully write up the stops as required, and supervisors closely review the paperwork, bad stops can be identified and the officers' errors corrected promptly. Or at least that is how Zimroth's comments read.<br />
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There is plenty of truth to this view. I have deposed more police officers than I can count and only a few were able to articulate what "probable cause" means, even though the officers know that they are not permitted to make an arrest without it. The point being that young police officers receive (retain?) little analytical or legal training. Apparently, nuance and subtlety are not commonly found on the street or in patrol cars.<br />
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More importantly, for many officers, race is an appropriate component in their analysis of possible criminal activity. The sight of several young black men or teenagers walking down the street triggers many officers' alarms precisely because they are young, male, and black. For some, this is perfectly rational and legitimate perspective. Yet, it is now being made clear to these officers that they cannot make race-based stops. Not surprisingly, officers long-trained to engage in race-based policing are now confused about how to proceed, which results in fewer and fewer stops.<br />
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Zimroth is correct: more training is critical and will benefit all concerned. But we cannot simply outlaw race-based policing for it to go away; we have to continue talking about how it came to be in the first place.Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-73579928418472643972015-05-20T15:18:00.000-04:002015-05-20T15:18:11.498-04:00Judges Are People TooThe NY Times yesterday <a href="http://nyti.ms/1JwGpPj" target="_blank">ran a story </a>about how federal judges sitting in the Southern District of New York often seek each other's counsel. First thought: well yeah, of course they do, this isn't news. Second thought: we know so little about how the judicial branch functions that people are surprised to find out that the judges behave like human beings. The simplest take away is that lawyers should remember that how you are seen by one judge can impact on your reputation in front of other judges, including those you have never appeared before.<br />
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It's startling to be confronted with the fact that complete strangers have already formed opinions about you. It's particularly off-putting when the opinions aren't favorable. For instance, many, many years ago, when I was a teenager, I was at a party when a girl asked me my name. When I told her she said, "Ohhh, <u>you're</u> Michael Lumer," and walked away. Whatever it was that she had heard, it sure wasn't good.<br />
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For those of us that appear frequently in the same courthouses, we undoubtedly have reputations. It may not be consistent, and judges may not always agree, but you are not unknown. A friend of mine clerked for a federal judge who liked to do impressions of lawyers and would often make less than charitable comments about their skills and personalities. I recently heard of a judge telling lawyers during a hearing on a discovery dispute that she had asked her colleagues about these particular lawyers and received back less than flattering reviews. Of course this happens. Lawyers talk about judges all the time; why wouldn't judges talk about the lawyers?<br />
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As an an aside, there's nothing wrong with judicial counseling about thorny legal issues. As long as the presiding judge reaches his or her own opinion, it makes no difference if it was arrived at after considering input from other judges. Certainly, judges look to other courts' reasoning and though processes in prior cases in their decision making, and there's nothing substantively different about simply asking directly. Besides, the available option is none too appealing, which is to say that requiring a judge who's unsure how to proceed to proceed blindly or simply flip a coin, rather than seek an opinion from a fellow jurist, makes no sense.<br />
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Of course judges talk to each other. Just like other co-workers often talk to each other. They doubtlessly talk about the same wide range of stuff, ranging from what they did over the weekend, to family matters, to what's going on at work. And just like the rest of us, they not only seek and give advise about how to handle a seemingly novel or tricky work-related question, they also share stories about the lawyers they see in court. Get caught fibbing about a case, show up unprepared, make moronic arguments without realizing how ridiculous you sound, and you are building a reputation you'll have trouble losing. Shocking? Hardly. And that's my CLE for the day.<br />
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<br />Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-40222845007048306092015-05-17T20:37:00.001-04:002015-05-17T20:37:09.636-04:00Freddie Gray: the Beat Goes On<a href="http://1.bp.blogspot.com/-tgqD4zvlcbA/VVkwpifZRZI/AAAAAAAAO54/V1D6U6rh_6U/s1600/9TpbgErEc.jpeg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="200" src="http://1.bp.blogspot.com/-tgqD4zvlcbA/VVkwpifZRZI/AAAAAAAAO54/V1D6U6rh_6U/s200/9TpbgErEc.jpeg" width="200" /></a>I drafted the following post a few weeks ago. Work commitments and other matters commandeered my schedule, and I never got around to pressing the publish button. In this short interlude, "Baltimore" has faded as a national story, which sort of makes my point.<br />
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A few weeks ago a friend asked if I was going to write about <a href="http://www.theguardian.com/us-news/2015/apr/12/walter-scott-shooting-officer-michael-slager-audio-recording" target="_blank">the shooting of Walter Scott</a>. My work load since March has been really heavy, but I made a note that I should. Some time passed and then Freddie Gray was killed. By the time I revisited my notes a few weeks later, Freddie Gray had been killed and I could barely remember who Walter Scott was. Which is my primary thought in this particular post. In the period that has passed since this post was drafted, the focus has shifted from the death of Freddie Gray to the prosecution of the officers, and the rather idiotic suggestion that the local prosecutor recuse herself because her decision to seek a conviction means she's biased. There will be more to follow. There's just too much to say, too much going on, to write just one passing post about this Freddie Gray moment.<br />
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<a name='more'></a>The murder of Freddie Gray is a fresh, raw wound. It's one that will either scab over and heal or be gouged wide open by the upcoming criminal prosecution of the officers. Over the past week or two, Gray's death, and the reaction in Baltimore and around the country, felt like it would dominate the news for the months to come. It likely will not. Some other distracting event will occur, and we will lurch forward, leaving Gray and Baltimore behind. We will do so without any meaningful attempts to acknowledge, much less resolve the underlying issues that caused the officers in question to abuse and kill Freddie Gray, or to grasp and address the deep anger and frustration that comes rushing to the surface in the public demonstrations that follow these deaths.<br />
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As these events unfold, I am struck by a certain sameness. Police culpability varies from death to death. Some killings appear utterly wrong, others, not so much. But the state's reaction is inevitably the same. First, the police unions and their accomplices rush out to defend the officers and blame the victims. Plainly, they cry, Freddie Gray must have done this to himself, the officers did nothing wrong, they had no choice, etc. The government chimes in with the usual assurances that it will look into things. Eventually, little is done and it fades away. If the public responds with anger, the media leaps in to marginalize the protesters, as though expressions of public fury and hopelessness are the moral and causal equivalents of state killings.<br />
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My first thought as Baltimore convulsed was that the media battle to dictate the terms to be used covering the public's reaction was important. CNN, for instance, did yeoman's work to recast the protesters as thugs and the police as polite peace keepers, as well meaning faces of a government forced into violence by the brutality of the black mob. Thugs, in this context, obviously meant black men who appear violent, dangerous, possibly criminal, and dangerous for white people. In this mainstream narrative, protesters were either thugs; antagonists who were out there stirring up the thugs, the "good ones." The violence that precipated and then was dispatched to quell the protests was seemingly beside the point.<br />
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Parenthetically, when I was growing up white in Brooklyn, mostly in the 1970s, I heard plenty of other white people extol the virtues of black people they liked as the "good ones." It was a parallel to the back handed compliment that so-and-so was really articulate or something similar. These comments usually came from people who were utterly clueless that they were racist, and would be offended if you suggested that they were. But that's a discussion for another day.<br />
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Freddie Gray's death for many was but one more example of a state system that visits casual violence upon the poor and disenfranchised on a daily basis. (Yes, it appears to be racially driven, but that is just as much a function of racial disparity in income distribution that masks the core underlying class conflict). It became a tipping point and protests ensued. Those that cannot or will not acknowledge the legitimacy of this anger insist that this was an isolated bad act, as though nothing was going on until the agitators got everyone all worked up and the thugs started looting.<br />
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Since I'm going off on tangents, I would be remiss not to mention a viral news clip that showed a black woman encounter her teenage son while he was throwing stuff and generally protesting in a non non-violent way. The video showed her berating and smacking her son, which caused me some conflict. As a former angry young man, I am deeply sympathetic to that youngster's sense of helplessness in the face of authority, which manifests itself in a destructive rage. But as a lawyer committed to trying to work within the system (despite my knowledge that the system will not long tolerate any genuine challenges to its authority), as a parent of three kids, including one almost adult, I understand mom's reaction. I get her desire to protect and shield her son, her anger at him for putting himself in harm's way. In short, I feel for both of them.<br />
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But as for the protests versus riots story line, it is far too simple to laud the non-violent and condemn the protesters. Baltimore did not explode because Freddie Gray was violently killed by police officers. Baltimore, and the rest of the country, reacted strongly and immediately to a long-standing pattern of oppressive behavior. Not simply state supported police misconduct, but a larger, deeper, more reality in which people have no political voice, no economic power, and no hope that any of this will change. I am speaking about the lack of jobs, the lack of meaningful opportunity, the generations of helplessness in the face of local, state, and federal governments that effectively treat different people differently, that mete out a skewed form of justice that leaves larges numbers of people fearful and alienated. Over time, people's anger at real and perceived bias mounts, waiting for a triggering event.<br />
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I don't condone violence, and certainly not reactive, pointless violence. But I agree with Ta-Nehisi Coates' recent point in <a href="http://www.theatlantic.com/politics/archive/2015/04/nonviolence-as-compliance/391640/" target="_blank">The Atlantic</a>:<br />
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<i>When nonviolence is preached as an attempt to evade the repercussions of political brutality, it betrays itself. When nonviolence begins halfway through the war with the aggressor calling time out, it exposes itself as a ruse. When nonviolence is preached by the representatives of the state, while the state doles out heaps of violence to its citizens, it reveals itself to be a con.</i></div>
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I struggled to write this post. So much is going on and on so many levels, it's difficult to be concise. But, as an opening to a post that was going to be on Walter Scott shooting who morphed into Freddie Gray while I dithered, well, it's a start.</div>
Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-68633595539623628652015-04-20T20:39:00.000-04:002015-04-20T20:39:04.934-04:00Garner GJ Appeal Expedited<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
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<tr><td class="tr-caption" style="text-align: center;">45 Monroe Place, Brooklyn, NY<br />NYS Appellate Division for the Second Department</td></tr>
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The New York Appellate Division <a href="http://www.newyorklawjournal.com/home/id=1202724056377/Court-Fast-Tracks-Review-of-Garner-Grand-Jury-Case?mcode=1202615069279&curindex=0" target="_blank">has agreed to expedite</a> the appeal from a lower court's decision rejecting the request to unseal grand jury records in the Eric Garner case. Various parties, including the Legal Aid Society, New York Civil Liberties Union, NAACP and New York City Public Advocate Letitia James, had sought a court order to force Staten Island District Attorney Daniel Donovan to unseal and publish grand jury transcripts and exhibits relating to the inquiry into the death of Eric Garner following NYPD Officer David Pantoleo's deadly use of a choke hold. </div>
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Ultimately, and not too surprisingly, particularly given the Staten Island venue, the GJ declined to indict Pantoleo. Given the widely held belief in the legal community that a GJ's decision not to indict in cases such as these is usually the result of a rigged or deliberately flawed presentation (see, People v. Ham Sandwich), the demand to inspect the GJ records was to be expected. The court's initial ruling against the petitioning parties was but the first salvo.</div>
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Under the expedited schedule, the opening briefs are due by May 5. Donovan's opposing brief is due by May 26, and any reply briefs by June 2. Presumably oral argument and a subsequent written decision would follow shortly. Regardless of the outcome, it would not be surprising to see the case eventually land on the Court of Appeals' docket.</div>
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More to come, once the briefs are filed.</div>
Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-30024370817075310282015-04-19T17:48:00.002-04:002015-04-19T17:48:40.606-04:00FBI Admits Decades of Flawed Evidence<a href="http://1.bp.blogspot.com/-QT7k3V0PtVw/VTQffqSwTII/AAAAAAAAO3k/1TTVBVJ2B5c/s1600/fbi_logo_twitter.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://1.bp.blogspot.com/-QT7k3V0PtVw/VTQffqSwTII/AAAAAAAAO3k/1TTVBVJ2B5c/s1600/fbi_logo_twitter.jpg" height="200" width="192" /></a>According to <a href="http://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html" target="_blank">the Washington Post</a>, the government has admitted that, for years and years on end, every FBI examiner who testified in criminal trials over a twenty-years period prior to 2000 gave flawed testimony that favored the prosecution. It is a staggering admission.<br />
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The gist of the testimony concerned the use of hair follicle examinations to link suspects to forensic evidence, CSI-style. Apparently, despite the courts' universal acceptance that the offered testimony was sufficiently grounded in science as to be admissible, with the understanding that jurors would reflexively accept such testimony as true given its source, said evidence should not have been allowed into evidence. Meaning: large numbers of criminal convictions were obtained, at least in part, through the use of scientific evidence that was not, in actuality, as reliable as the testifying technician claimed it to be in order to persuade the courts to allow it into evidence.<br />
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Specifically, the Post states,<br />
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<i>The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.</i></div>
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<i>Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far . . . .The cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison . . . </i></div>
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To say this is perhaps the single largest forensic scandal in criminal prosecutions is probably an understatement. What this means is that for decades, the federal government affirmatively propagated junk science in order to obtain convictions, and that the courts, the supposed gatekeepers entrusted to ensure that scientific-based evidence is sufficiently reliable to be put before a jury, failed miserably at their task.<br />
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A few quick thoughts: first, by no means is this proof that everybody convicted in a case marked by dubious or outright fraudulent scientific "evidence" linking a defendant to a crime was innocent, or necessarily wrongly convicted. (Yes, there is a difference between being innocent and being wrongly convicted, but that's another discussion). It's entirely possible that all, many, some, or a few of the convictions marred by this flawed testimony were well supported by independent, compelling evidence of guilt such that the junk science proffered by the FBI did no meaningful damage.<br />
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However, that "justice" might still have been done in the sense in some of these cases misses the larger point. That is to say, we convict and imprison people on a daily basis, often for years or decades. Courts talk about finality, the need for us to rely on the outcomes of trials, when they deny post-convictions challenges. But for finality to mean anything beyond, "shut up, you had your day," the outcomes we are seeking to uphold must be reliable. Not kinda reliable, but really reliable; reliable enough that we are confident that not only was the convicted person actually guilty, but that he was justly convicted.<br />
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Unfortunately, such certainty, while quite often present, is far too often missing. It should surprise no one that the courts dropped the ball here. Judicial deference to government witnesses is one of those things that is glaringly obvious to all involved, yet everyone pretends doesn't exist. The government's FBI experts would explain the science underlying the testimony, judges would nod approvingly, and in comes the damning evidence, linking the defendant to the crime by a hair.<br />
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Peter Neufeld, one of the heads of New York's Innocence Project, is quoted saying,<br />
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<i>“The FBI’s three-decade use of microscopic hair analysis to incriminate defendants was a complete disaster. We need an exhaustive investigation that looks at how the FBI, state governments that relied on examiners trained by the FBI and the courts allowed this to happen and why it wasn’t stopped much sooner.”</i></div>
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True enough, but still, where do we go from here? As case after case emerges where it appears that evidence was fabricated or suppressed by police, or where prosecutors knowingly plunged forward knowing that they were likely securing the conviction of an innocent person, a healthy mistrust is of our criminal justice system is understandable, if not critically necessary. The sausage factory that is our legal system is deeply flawed.<br />
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The FBI and DOJ revelations are welcome, but do nothing to assuage the lack of confidence that we ought to feel in the convictions that are churned out of our overburdened assembly line system of justice.Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com2tag:blogger.com,1999:blog-1029087733721310212.post-84889976229825698792015-03-22T18:21:00.003-04:002015-03-22T18:24:07.462-04:00Marty Stroud, Glenn Ford, and the Machinery of Death<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody>
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<tr><td class="tr-caption" style="text-align: center;"><span style="background-color: white; color: #281b21; font-family: sl-Apres; font-size: 10px; line-height: 11px; text-align: right;">Photo by Douglas Collier/</span><a href="http://www.shreveporttimes.com/story/opinion/readers/2015/03/20/lead-prosecutor-offers-apology-in-the-case-of-exonerated-death-row-inmate-glenn-ford/25049063/%E2%80%8B" style="background-color: white; color: #660033; font-family: sl-Apres; font-size: 10px; line-height: 11px; text-align: right; text-decoration: none;" target="_blank">The <em>Shreveport Times</em></a></td></tr>
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The Shreveport Times<a href="http://www.shreveporttimes.com/longform/opinion/readers/2015/03/20/lead-prosecutor-offers-apology-in-the-case-of-exonerated-death-row-inmate-glenn-ford/25049063/" target="_blank"> recently published a written apology</a> from former prosecutor Marty Stroud to Glenn Ford. Stroud's words are powerful and moving, and I urge you to read the piece.<br />
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Stroud had successfully obtained the death penalty for Ford in 1984 for a murder in Shreveport, Louisiana. Ford spent 33 years in prison, the vast majority of which was spent on death row, before he was exonerated. He may now be free, but justice has not been done, and time is running out.<br />
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Louisiana, much to Stroud's surprise, but probably nobody else's, has been staunchly resisting paying Ford any sort of compensation for the years he spent in their state penitentiaries. Sadly, Ford now has stage four lung cancer; a diagnosis that speaks for itself.<br />
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I won't bore you with the details of the wrongful conviction or how Ford was finally cleared, except to point out that Ford, a black man, was convicted by an all-white jury, and defended by attorneys who did not practice criminal law and had never tried a case before a jury. The remaining history can be found online or in <a href="http://www.washingtonpost.com/news/post-nation/wp/2015/03/21/it-was-fundamentally-unfair-a-prosecutor-apologizes-for-his-role-in-putting-an-innocent-man-on-death-row/" target="_blank">this article</a> in the Washington Post. The far more interesting part of this story is Stroud's open apology to Ford, which is bundled together with both express and implicit criticisms of our system of justice. The apology is set out, with a video of Stroud's commentary, in the Shreveport Times' article.<br />
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The story, and Shroud's full acceptance of responsibility for his role in Ford's conviction and imprisonment is powerful stuff and should be read in its entirety. Stroud makes no effort to let himself off the hook, saying, for instance:<br />
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In 1984, I was 33 years old. I was arrogant, judgmental, narcissistic and very full of myself. I was not as interested in justice as I was in winning. To borrow a phrase from Al Pacino in the movie "And Justice for All," "Winning became everything."</div>
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After the death verdict in the Ford trial, I went out with others and celebrated with a few rounds of drinks. That's sick. I had been entrusted with the duty to seek the death of a fellow human being, a very solemn task that certainly did not warrant any "celebration."</div>
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In my rebuttal argument during the penalty phase of the trial, I mocked Mr. Ford, stating that this man wanted to stay alive so he could be given the opportunity to prove his innocence. I continued by saying this should be an affront to each of you jurors, for he showed no remorse, only contempt for your verdict.</div>
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How totally wrong was I.</div>
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I speak only for me and no one else.</div>
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I apologize to Glenn Ford for all the misery I have caused him and his family.</div>
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I apologize to the family of Mr. Rozeman for giving them the false hope of some closure.</div>
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I apologize to the members of the jury for not having all of the story that should have been disclosed to them.</div>
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I apologize to the court in not having been more diligent in my duty to ensure that proper disclosures of any exculpatory evidence had been provided to the defense.</div>
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<div style="background-color: beige;">
Glenn Ford deserves every penny owed to him under the compensation statute.</div>
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There's more. A lot more. Stroud argues against the death penalty, saying,<br />
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We are simply incapable of devising a system that can fairly and impartially impose a sentence of death because we are all fallible human beings.</div>
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The clear reality is that the death penalty is an anathema to any society that purports to call itself civilized. </div>
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He is right, of course. But that is almost beside the point. Ford's conviction was due far less to Stroud's willful blindness than the fact that it occurred in a system where a man facing the death penalty could be defended by lawyers who lacked experience in defending criminal cases. That they had never handled a jury trial before was the cherry on top. It's the equivalent of delegating a complex, high-risk spinal surgery to a just-out-of-med-school urology resident, and then chalking up the negative outcome to God's will.<br />
<br />
Stroud's apology acknowledges the realities of criminal prosecutions throughout the country, local, state and federal, be they death penalty cases or run of the mill, low-level felonies. They are driven by facts that are often from questionable sources, and are handled by human beings, replete with all the failings and shortcomings innate to our species. A desire to win that distorts one's sense of doing justice, a view of a criminal prosecution as a competition in which carrying the verdict trumps all else, an absence of perspective and understanding of the process as being larger than the individual, are all inevitable within our criminal justice system.<br />
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That people are wrongly prosecuted and convicted should come as no surprise, particularly given the number of exonerations that have come to light in recent years. That there are untold numbers of innocent men and women rotting in our penitentiaries cannot be seriously disputed. That innocent men and women have no doubt been put to death by our machinery of death is equally certain.<br />
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Marty Stroud's deeply felt and moving apology raises many questions, not the least of which is what can we do to help guard against such travesties of justice going forward. Ultimately, those on our side of the fence can do little but protest and rail on about individual injustices. Barring a willingness to by those in power to implement institutional change, history will no doubt continue to repeat itself, without regard for all the other Glenn Fords and Marty Strouds in its path.Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-11973414216108915452015-03-15T19:20:00.000-04:002015-03-15T19:20:56.925-04:00Rikers Guard Pimps, Deals, and Publishes<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="http://1.bp.blogspot.com/-93uS7curDNk/VQYSOWEj_kI/AAAAAAAAO0k/yiyasWP37Jc/s1600/rikers15n-4-web.jpg" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" src="http://1.bp.blogspot.com/-93uS7curDNk/VQYSOWEj_kI/AAAAAAAAO0k/yiyasWP37Jc/s1600/rikers15n-4-web.jpg" height="320" width="211" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Courtesy of the <br />New York Daily News</td></tr>
</tbody></table>
NYC Corrections Officer Gary Heyward worked Rikers Island for a number of years. While there, he smuggled in tobacco, liquor, cell phones and drugs, provided muscle for pay back beatings of inmates, and pimped out three female officers, "copstitutes," to inmates and senior management. Or so he says in his just published memoir, "Corruption Officer."<br />
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The <a href="http://www.nydailynews.com/new-york/nyc-crime/ex-rikers-guard-sold-drugs-pimped-female-officers-book-article-1.2149561" target="_blank">Daily News</a> profiles the sordid and depressing story of a corrupt C.O. who helped make the Rikers experience all the more miserable. The article provides plenty of salacious details that I won't bother to repeat. Not surprisingly, the DOC says he's exaggerating his stories to sell books. Humorously, they also suggest he's tarnishing the department's good reputation.<br />
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Heyward was caught after an accomplice rolled over on him, and spent nearly two years in a state prison before he was supposedly, inconceivably, permitted return to work for the City in an undisclosed position. In what is probably the most outrageous and seemingly unbelievable part of his story, Heyward not only continues to work for the City, but gets to keep his pension too.<br />
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These latter claims are easily refutable, if false. The City's silence seems to suggest that truth is indeed stranger than fiction. What nobody can reasonably deny is that Rikers has long been rife with corruption and violence. The only open questions are ones of degree and whether this system can be salvaged.<br />
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<br />Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com2tag:blogger.com,1999:blog-1029087733721310212.post-89289251037050576782015-03-14T11:58:00.000-04:002015-03-14T11:58:48.856-04:00NYPD editing Bell, Garner, Diallo Wikipedia pages<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody>
<tr><td style="text-align: center;"><a href="http://4.bp.blogspot.com/-J8UBYMsFixQ/VQRYOlwCdsI/AAAAAAAAO0I/D-MMxkT2h3A/s1600/Wikipedia-logo-v2.svg.png" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" src="http://4.bp.blogspot.com/-J8UBYMsFixQ/VQRYOlwCdsI/AAAAAAAAO0I/D-MMxkT2h3A/s1600/Wikipedia-logo-v2.svg.png" height="182" width="200" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Courtesy of en.wikipedia.com</td></tr>
</tbody></table>
Apparently the NYPD is tasking employees with editing Wikipedia pages concerning the killing of Sean Bell, Eric Garner, and Amadou Diallo. According to <a href="http://www.capitalnewyork.com/article/city-hall/2015/03/8563947/edits-wikipedia-pages-bell-garner-diallo-traced-1-police-plaza" target="_blank">an article by Capital</a>, edits to these pages have been traced back to computers operating on the NYPD's network at One Police Plaza in NYC. The NYPD is supposedly looking into it, although, if the info concerning the network domain is accurate, then it's pretty cut and dried.<br />
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I am assuming that the allegations are true. Not so I can wag my finger and shake my head in consternation. At least not this time. There's nothing particularly shocking about a city agency trying to control the public narrative. Manipulating Wikipedia pages -- which readers ought to know often offer questionably accurate factual information -- is old hat. There's really no qualitative difference between massaging the adjectives and phrasing in Wiki entries for critical events in the NYPD's past, and the attempts by the NYPD and the City, through their supporters and various talking heads to shape the message back when these killings occurred. </div>
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Bell and Diallo were gunned down by officers under circumstances indicating that some officers were guilty, at a minimum, of manslaughter, if not outright murder. The response to these killings, and many others, in NYC was outrage, as was the more recent response to the death of Eric Garner in police custody following the use of a long-banned choke hold. People on all sides of these events fought publicly and by proxy to dictate the parameters of the story, to control the message, if you will. </div>
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So far, the apparent edits were not earth-shattering, although they may help subtly shift certain aspects of the discussion. For instance, according to the article:</div>
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On the evening of Dec. 3, hours after a Staten Island grand jury ruled not to indict NYPD Officer Daniel Pantaleo in the death of Eric Garner, a user on the 1 Police Plaza network made multiple edits, visible here and here, to the “Death of Eric Garner” Wikipedia entry. The edits, all concerning the actions of Eric Garner and the police officers involved in the confrontation, are as follows:</blockquote>
<blockquote class="tr_bq">
● “Garner raised both his arms in the air” was changed to “Garner flailed his arms about as he spoke.”<br />
● “[P]ush Garner's face into the sidewalk” was changed to “push Garner's head down into the sidewalk.”<br />
● “Use of the choke hold has been prohibited” was changed to “Use of the choke hold is legal, but has been prohibited.”<br />
● The sentence, “Garner, who was considerably larger than any of the officers, continued to struggle with them,” was added to the description of the incident.<br />
● Instances of the word “chokehold” were replaced twice, once to “chokehold or headlock,” and once to “respiratory distress.”</blockquote>
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But in the end, the only surprise would be if it turns out there aren't more substantive changes elsewhere. The fight over the public narrative is always ongoing. Wikipedia is particularly susceptible to such editorial influences, and there's nothing outrageous about a large public department attempting to "correct" the record. Just as there is nothing wrong with taking to social media to call out the NYPD for such manipulative actions in order to push back. And so the battle for hearts and minds continues.</div>
Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-72658551548636410202015-03-08T22:17:00.001-04:002015-03-14T11:51:11.546-04:00NYPD Quotas and the Blue Wall of Silence<div>
<a href="http://1.bp.blogspot.com/-UR8yP4Wz3V8/VPz_3zqXJGI/AAAAAAAAOzM/TcgQyB-c23A/s1600/nypdlogocvh.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://1.bp.blogspot.com/-UR8yP4Wz3V8/VPz_3zqXJGI/AAAAAAAAOzM/TcgQyB-c23A/s1600/nypdlogocvh.jpg" height="200" width="184" /></a>Last week, P.O. Craig Matthews' case against the NYPD alleging retaliation for his complaining about the quota system (which the NYPD won't admit to), <a href="http://www.fourthandfourteenth.com/2015/02/the-2d-circuits-busy-week-pt-1.html" target="_blank">was reinstated</a> by the United States Court of Appeals for the Second Circuit. Now, according to the NY Post in two different articles (<a href="http://nypost.com/2015/03/02/nypd-targets-minority-officers-with-quota-punishments-suit/" target="_blank">here</a> and <a href="http://nypost.com/2015/03/05/more-nypd-officers-join-quota-punishment-lawsuit-2/" target="_blank">here</a>), a dozen plaintiffs have come forward in a lawsuit against the NYPD alleging that the department is enforcing a quota system for arrests and criminal summonses. These plaintiffs are black and Latino officers who are alleging that the policy is racially driven as the targeted communities are predominantly black and Latino, and these officers are treated more harshly than their white colleagues when they don't meet their quotas.<br />
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The safe thing to say is that these are still merely allegations, yada yada yada. But they follow multiple lawsuits filed by officers throughout the City of New York that all generally allege that officers are told there are baseline numbers they must make and woe unto those who fall short. There's far too much smoke here to believe there's no fire crackling underneath.<br />
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<a name='more'></a>Personally, I am somewhat torn by the concept of police quotas. The dangers are plain: officers pressed to issue summonses and make arrests may understandably feel compelled to lie and fabricate in order to make their numbers. Officers wield substantial discretion in deciding whether to arrest, issue a summons, or let something pass. Quotas can impact negatively on the use of that discretion, if not push officers into misconduct.<br />
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I have litigated many cases where it appears that officers made large numbers of arrests solely to generate numbers. The fact pattern from these cases varies in detail but without much difference: cops go into a home or business with a warrant. They may find a small amount of drugs or a weapon which appear to belong to one or two people, but they arrest everybody in sight. The officers must know who the culpable parties are, but they deliberately grab everyone anyway. The prosecutors often let some or all of these people go without charges, and the rest have their cases dismissed shortly thereafter. These arrests turn into civil lawsuits that end up costing the City substantial amounts of money.<br />
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What is notable about this process is that the officers write up these arrests as a positive outcome. Memos will issue in which the officers boast that the warrant execution was a success because X number of arrests were made, regardless of whether any of these people were actually charged, much less convicted of a crime. In other words, success is measured purely by the number of arrests. What happens afterwards is of no consequence to the NYPD. Everybody had their charges dismissed? That's because of the D.A. The City paid out several hundred thousand dollars? Who cares, it doesn't cost the officers or the NYPD anything.<br />
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On the other hand, target numbers or production goals are often a necessary part of the workplace. For instance, lawyers who work on an hourly basis often have billing quotas. Surely the negative consequences of falling short could result in padded time sheets, particularly if people's careers are on the line. But if the desired numbers are reasonable targets, and the employer is putting the employee in a position where these goals can be met without bending rules or by outright fabrication, then perhaps they are not only not harmful, but actually useful in terms of setting expectations.<br />
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Therein lies the rub. First, whether these targets are reasonable, and second, whether using arrests and summonses as measuring sticks is a good thing. I'm not a criminologist or sociologist, and won't pretend to have read all the recent literature. But, what is clear from the observations available from my location along the pipeline is that the NYPD's top-down fixation on numbers needlessly creates confrontations, and results in pointless and unlawful arrests, with a variety of adverse consequences, including the continuing and cumulative damage to police-community relations.<br />
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On another note, it is interesting to see an obvious exception to the blue wall of silence. The blue wall is one of those unintentionally ironic oddities that is simultaneously understandable and thoroughly unreasonable. A law enforcement version of the mob's infamous "omerta," it was the unspoken rule that cops never rat out other cops. No matter how egregious the misconduct, tattling would somehow be worse. Those that violated the code were ostracized, or worse; just ask Florida State Trooper <a href="http://www.fourthandfourteenth.com/2014/02/the-blue-wall-of-silence-in-south.html" target="_blank">Donna Watts</a>.</div>
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Hence, we have law enforcement supporters constantly reminding us that the vast majority of police officers are good cops, men and women who try to do the right thing, who put their lives on the line to make the city safer and protect all of the city's citizens. It is unfair, they lament, to tar them with the same brush reserved for the handful of thugs, thieves, and liars littered throughout the department. This is true, I suppose, except that it isn't. For as long as these "good" officers are willing to tolerate their lawless brothers and sisters, then they are as dirty and complicit as the worst of them.<br />
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Omerta is a thing of the past. Even mob chiefs are rolling over these days. But the blue wall remains an impressive force. It is a rare thing when one officer will -- outside of an employment squabble -- call out another officer publicly. It simply is not done.<br />
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Yet Craig Matthews, Adrian Schoolcraft, and a host of other officers are comfortable taking on the brass about quotas and retaliation. The distinction being that they are ratting out their bosses, not their brothers and sisters. Whether this is a meaningful chink in blue wall's armor, a blow for class warfare, or just an aberration, is to be determined. I am hoping for door number one. The blue wall of silence is one the NYPD's biggest problems, and poses a seemingly insurmountable obstacle to real, lasting, and meaningful reform within the NYPD. There's no reason to believe we are turning a corner just yet, but perhaps we are getting a little closer.</div>
Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-10477394593875583132015-03-05T10:55:00.004-05:002015-03-22T18:27:46.144-04:00The 2d Circuit's Busy Week, Pt. 3<a href="http://4.bp.blogspot.com/-MXTD504EQkU/VPh3zkw7cFI/AAAAAAAAOyo/iM73PEn8v_k/s1600/9TpbgErEc.jpeg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-MXTD504EQkU/VPh3zkw7cFI/AAAAAAAAOyo/iM73PEn8v_k/s1600/9TpbgErEc.jpeg" height="200" width="200" /></a>The third civil rights decision issued by the Second Circuit Court of Appeals last week promptly cost the City of New York more than $18 million. It also visited the issue of whether a convicted person seeking exculpatory evidence under state law can pursue a claim for damages under §1983 when a local government's policies frustrate or otherwise prevent the very access promised by state law, and concluded that, at least here, such a cause of action may stand.<br />
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In 1985, Alan Newtown was convicted of the brutal rape and robbery of a woman in the Bronx. The post-conviction motion practice and events are detailed in the decision below. The condensed version is that in the mid-1990s, Newton sought the DNA evidence for testing, but it was reported lost by the NYPD and the Bronx D.A.'s office. It was not until 10 years later that it turned up. DNA testing conducted in 2006 conclusively established that the DNA from the rape kit did not match Newton's, and, Newton's conviction was promptly vacated. By then, he had spent more than 20 years in prison.<br />
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<a name='more'></a>Newton subsequently sued New York City and various officials in the NYPD, claiming that the City’s evidence management system was inadequate and thus violated his his rights to due process under the Fourteenth Amendment and access to the courts under the First Amendment. The jury sided with Newton and awarded him $18 million. United States District Judge Shira Scheindlin set aside the verdict, finding that Newton's claims were barred by prior caselaw. This appellate decision reversed that finding and reinstated his award under the Fourteenth Amendment. Newton's First Amendment claim became moot as it covered the same damages (and was dismissed by the district court as a result of the dismissal of the Fourteenthen Amendment claim). The Second Circuit remanded this issue back to the district court, which is likely to find it need not rule directly, since it would not alter the outcome that has now been ordered by the Court of Appeals.<br />
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The decision is important for Newton because now he gets paid. On a different level, the case is significant in that the Second Circuit determined that a local government's failure to maintain an evidence management system that could adequately track and produce DNA evidence could, where this results in demonstrable injury in a post-conviction setting, be compensable as a constitutional violation.<br />
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The analysis started with the acknowledgement that, as per the Supreme Court, convicted persons have "no freestanding substantive due process right to DNA evidence" under federal law or the constitution. However, New York law conferred upon him a right to this evidence, as well as a procedure to follow to both obtain the evidence and pursue any viable claims for relief. Newton's complaint was not that New York or federal law was deficient in some way, but rather that the City of New York "undermin[ed] the State’s procedures by its recklessly chaotic evidence management system." <br />
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The Second Circuit noted that,"This is hardly a new concept. In other contexts we have permitted plaintiffs to pursue claims against municipalities for deprivations of State‐created interests," which is precisely what Newton was seeking to do here. More precisely, the Court held,<br />
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Newton was not entitled to the preservation of evidence under State law, but only to a faithful accounting of the evidence in the City’s possession. We do not decide what specific City procedure is necessary to manage and track evidence. We simply reinstate a jury verdict that found that the then‐existing system was inadequate and that the City, through its agents, servants, or employees, intentionally or recklessly administered an evidence management system that was constitutionally inadequate and that prevented Newton from vindicating his liberty interest in violation of his Fourteenth Amendment right to due process. </blockquote>
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The decision follows below. Meanwhile, the underlying criminal case stands as a reminder of the fallibility of our criminal justice system, and the inherent dangers of wrongful prosecutions and convictions, intentionally or otherwise. Not only has Alan Newton suffered immensely, but the victim was denied the justice she deserved while the guilty party escaped altogether.<br />
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<a href="https://www.scribd.com/doc/257137637/Newton-v-NYC-2-26-15" style="text-decoration: underline;" title="View Newton v. NYC 2.26.15 on Scribd">Newton v. NYC 2.26.15</a> by <a href="https://www.scribd.com/ml07751" style="text-decoration: underline;" title="View ml07751's profile on Scribd">ml07751</a></div>
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<br />Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-16571775603440145932015-02-28T11:23:00.001-05:002015-02-28T11:23:29.701-05:00The 2d Circuit's Busy Week, Pt. 2<div class="separator" style="clear: both; text-align: center;">
<a href="http://4.bp.blogspot.com/-SRCQqrDRnF4/VPHlgJpnbZI/AAAAAAAAOxQ/OxLBmEUH_mM/s1600/keep-calm-and-carry-on-whistleblowing.png" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://4.bp.blogspot.com/-SRCQqrDRnF4/VPHlgJpnbZI/AAAAAAAAOxQ/OxLBmEUH_mM/s1600/keep-calm-and-carry-on-whistleblowing.png" height="200" width="171" /></a></div>
Having just reversed itself in the face of an <i>en banc</i> rehearing in <i><a href="http://www.fourthandfourteenth.com/2015/02/the-2d-circuits-busy-week-pt-1.html" target="_blank">Garcia v. John and Jane Does</a></i>, the Second Circuit next addressed the case of <i>Matthews v. City of New York</i>. This interesting case concerns a NYPD officer's claims that his bosses punished him for complaining about a precinct-wide quota policy. Not too surprisingly, management rewarded Matthews for voicing his concerns by making his life difficult. He sued on First Amendment grounds. The district court dismissed, finding that he was acting as a public employee when he complained, rather than simply as a citizen. The Court of Appeals reversed. It's a good decision that puts a bit of a dent in the controlling Supreme Court case, <i>Garcetti v. Ceballos.</i><br />
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<a name='more'></a>Many people assume that the First Amendment protects everyone's right to say anything to anybody at any time without fear of reprisal. This is not only untrue but entirely unworkable. Only certain speech is protected, and only from certain employers and parties and only in certain cases. In the context of a public employee complaining about the policies or actions of the employer, if the speech does not concern matters of public concern, or if the employee was speaking in his capacity as an employee, rather than simply as a citizen, it is not protected.<br />
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There was no dispute that Matthews' complaints about the detrimental impact of quotas involved a matter of public concern. The only dispute was whether he was acting as a police officer or a citizen. It seems simple enough, he was complaining to his NYPD bosses about their NYPD policies. But Court in its opinion -- following below -- notes that his complaints were not made in the manner established for NYPD officers to report misconduct or file official complaints, but rather were made outside the normal chain of command, sometimes at public events where community feedback was invited. Thus, he was acting as a citizen and the case will proceed to trial.<br />
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It's an important decision. The existence of NYPD quotas is something that (a) appears plainly true; (b) is unhealthy for the department and the communities it serves; and yet (c) the NYPD continues to deny. The people most knowledgeable about quotas within the NYPD are the rank and file, the ones for whom the quotas were designed. They are the best source of information, and thus, in the rare occasions when they are willing to come forward and speak, they should be protected from reprisals.<br />
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Let's start with the obvious: quotas exist, regardless of what they are called. A retired patrol sergeant from Brooklyn I have known for years told me that while there were no such things as "quotas," but there were monthly "activity levels" that officers were expected to meet. Several other officers have publicly complained about quota systems. For instance, Adrian Schoolcraft, a patrol officer from the 81 precinct recorded his supervisors repeatedly threatening officers if they could make their quotas; conduct that affirms Matthews' claims about behavior in his Bronx precinct. (Excerpts from those tapes were or still are available via a series of articles by Graham Rayman in the Village Voice).<br />
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None of this ought to be surprising for a statistics-driven NYPD. If numbers are the religion, then Compstat is the bible. It is entirely reasonable for the NYPD's analytics oriented senior commanders to conclude that, given both the City's existing crime rates and the department's "broken windows" theory of policing, optimally every month a minimum of X summonses ought to be issued, a Y number of Stop and Frisks ought to be carried out, and a Z number of arrests made. Borough commanders pass this bottom line pressure on down the line.<br />
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As Matthews correctly noted, this sort of pressure leads to bad arrests, the issuance of undeserved summonses or Stop and Frisks, and antagonizes community residents. The bad arrests and uneven enforcement of laws and administrative codes undermines public faith in the police, and government in general, and exacerbates the breakdown between citizens and the state. It is important that those with the most knowledge about these policies be able to speak out when the NYPD is continuing to insist privately on their implementation while publicly denying their existence.<br />
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Until and unless the Supreme Court decides otherwise, this is a positive step for the City of New York, even if it's lawyers think differently.<br />
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<a href="https://www.scribd.com/doc/257137639/Matthews-v-NYC-2-26-15" style="text-decoration: underline;" title="View Matthews v NYC 2.26.15 on Scribd">Matthews v NYC 2.26.15</a> by <a href="https://www.scribd.com/ml07751" style="text-decoration: underline;" title="View ml07751's profile on Scribd">ml07751</a></div>
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<br />Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0tag:blogger.com,1999:blog-1029087733721310212.post-64917792199392997272015-02-27T11:34:00.000-05:002015-02-27T11:34:23.969-05:00The 2d Circuit's Busy Week, Pt. 1.<div class="separator" style="clear: both; text-align: center;">
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The Second Circuit issued three opinions this week concerning various constitutional claims. If you want a detailed dissection of these issues you have come to the wrong place. If it's a superficial overview you want, with links to the decisions, read on.<br />
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First up, the Court throws out a false arrest suit brought by Occupy Wall Street protestors after they were arrested in October 2011. This opinion concerns the Court's reversal of it's own prior decision affirming the denial of qualified immunity NYPD officers for having arrested hundreds of Occupy Wall Street Demonstrators in 2011. Let me simplify: in <i>Garcia v. John and Jane Does</i>, the plaintiffs were OWS demonstrators who marched onto the roadway of the Brooklyn Bridge. The plaintiffs alleged, in part, that the officers had effectively invited the marchers to enter the roadway of the bridge (conduct that would otherwise be unlawful), then blocked off their exit from the roadway, and arrested them. The case was brought in the Southern District of New York before Judge Jed Rakoff.<br />
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The officers moved for qualified immunity, a doctrine that protects individual officers from being sued for violating the constitution if it was not unreasonable for the officers to believe that their conduct was constitutionally permissible. In other words, if the conduct was unconstitutional, but could be viewed as a reasonable mistake, the officer is immune from suit. Judge Rakoff denied the motion, saying that there were factual allegations which, if true, would make Q.I. unavailable. The officers appealed to the Second Circuit, and lost. They moved for an <i>en banc</i> rehearing, which was granted. The original three-judge appellate panel then amended it's original decision, reversed itself completely, and ordered the underlying case dismissed. The <i>en banc</i> rehearing was then cancelled as moot.<br />
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It's an interesting and somewhat torturous decision. In sum, the Court concludes that once the demonstrators began walking in the roadway, they were violating various laws and subject to arrest. Hence, it was reasonable for the officers to believe that probable cause for the arrests existed, even if, ultimately, it did not. The Court does a little two-step around whether the defendants effectively invited the demonstrators to enter the roadway to begin with, and then prevented them from leaving (see the opinion for the facts, as viewed by the Court). The Court eventually concludes that the evidence of invitation (i.e., whether they set up the OWS plaintiffs for arrest) was ambiguous, and thus the officers could reasonably have thought they had probable cause.<br />
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It's not a good decision for our side and worthy of further discussion. Meanwhile, the decision follows:<br />
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<a href="https://www.scribd.com/doc/257137635/Garcia-v-NYC-2-23-15" style="text-decoration: underline;" title="View Garcia v. NYC 2.23.15 on Scribd">Garcia v. NYC 2.23.15</a></div>
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<br />Michael Lumerhttp://www.blogger.com/profile/07381307657838227800noreply@blogger.com0