Archive

March 31, 2010. Supreme Court Reverses Guilty Plea Where Lawyer Told Client Not to Worry about Deportation. In a landmark case, the Supreme Court of the United States today drastically changed the law by holding that "counsel must inform her client whether his plea carries a risk of deportation." Before pleading guilty, a defendant is entitled to effective assistance of counsel under the Sixth Amendment of the Constitution. Traditionally, that has not included advice about the "collateral consequences" of a guilty plea such as voting rights, the right to sit on juries, restrictions on employment and other problems faced by people after conviction of a crime. Most courts considered immigration consequences to be collateral in this sense. The Supreme Court changed that today, resting its opinion on the fact that immigration law has become much harsher on people with convictions over the last several years. "These changes to our immigration law have dramatically raised the stakes of a noncitizen's criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important." Read the complete decision here. If you are not a U.S. citizen and face criminal charges, it is essential to discuss the immigration consequences of any plea with your attorney.

October 6, 2009: Check out attorney Zachary Margulis-Ohnuma's review of Prof. Thane Rosenbaum's Law Lit: From Atticus Finch to the Practice in the September-October edition of the The Champion.  Professor Rosenbaum's book ambitously seeks to survey the literature of law, with a focus on stories of American trials.  Mr. Margulis-Ohnuma concluded, however, that the volume missed the mark: "Too much of the book belies the title: it is neither law nor literature.  What Rosenbaum has done is bring together his favorite writing, all of which is good, some of which is great, and most of which has something or other to do with the law."  The Champion is the journal of the National Association of Criminal Defense Lawyers.

July 1, 2009: Zachary Margulis-Ohnuma and Adam Perlmutter win $1 million civil rights verdict.  On Monday, an eight-person jury in Manhattan federal court found that a prison guard at Rikers Island violated the constitutional rights of Stevie B. Tatum, an innocent inmate, by being deliberately indifferent to his safety when other inmates brutally attacked him.  Mr. Tatum was beaten at the Adolescent Reception and Detention Center on Rikers Island in 2005 just hours before being acquitted of the DWI charge that he had been arrested for.  The evidence showed that the defendant, a correction officer, stood by while the inmates broke his jaw in two places and shattered the bones in his nose in two separate beatings over a period of a few minutes on April 29, 2005.  The officer admitted swearing at Mr. Tatum in front of other inmates.  According to the trial testimony, she charged at him and was held back by some inmates while other inmates beat him.

The jury held the officer liable for Mr. Tatum's injuries and awarded $1 million in damages to compensate him.  Exhibits admitted into evidence at trial showed that City employees tried to cover up the incident by filing a large number of false documents, including a phony "statement" bearing a forged signature of the plaintiff.  The City of New York declined to call as a witness a supervisor who signed many of the apparently forged documents, despite purporting to represent him and insisting there was no conflict between him and the correction officer.  The jury heard testimony from a medical expert, Dr. Richard Sullivan, who explained the numerous medical procedures required to repair the bones in Mr. Tatum's face.  One of the inmates accused was represented by Rishi Bandhari, Esq. and found not to be liable.  The Hon. Paul G. Gardephe of the United States District Court for the Southern District of New York presided over the weeklong trial.  We'd like to thank Adam Perlmutter, Esq., Alisa Randell, Danielle Smith, Martha Lineberger and especially Stevie B. Tatum for their extraordinary work and their dedication to upholding the rights guaranteed by the United States Constitution.

June 26, 2009: Supreme Court Upholds Fourth and Sixth Amendment Rights.  In two important cases handed down yesterday, the Supreme Court of the United States vindicated a student's Fourth Amendment right to be free from a strip search looking for ibupfrofen and a criminal defendant's Sixth Amendment right to confront a lab technician seeking to prove that a substance was illegal narcotics. In Safford Unified School District v. Redding, a 13-year-old schoolgirl named Savana Redding was suspected not only of possessing ibuprofen (the ingredient in Advil, an emphatically non-narcotic anti-inflamatory pain reliever) but also of -- gasp! -- distributing it to her classmates.  The school officials were so concerned that an innocent child might obtain headache relief that they confronted Savana.  They showed her the pill another student said she got from Savana and searched her backpack.  Nothing there.  The assistant principal then sent Savana with an administrative assistant named Helen Romero to the office of the school nurse, Peggy Schwallier.  Romero and Schwallier forced Savana to strip to her bra and panties.  Still nothing.  So they made her "pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree."  This was too much, even for today's Supreme Court.  Savana sued and the court found that, based on these facts, the search was unreasonable under the Fourth Amendment.  "Savana's subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating," wrote Justice Souter, for the majority.  "The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure."  Applying Fourth Amendment principles, Justice Souter found that under these circumstances, although the suspicion that Savana had pills was not unreasonable, the search was rendered unreasonable by the absence of any real potential harm from the pain-relievers at issue or any evidence the pills were actually in Savana's underwear. The case was remanded for further proceedings.

If school officials had found pills in Savana's underwear, they would have had to identify them as illegal drugs in order to prosecute her criminally.  That means sending the pills to a lab for testing.  The question in Melendez-Diaz v. Massachusetts was whether the state could use at trial an affidavit from a lab technician saying a substance was cocaine.  In a "rather straightforward application" of Crawford v. Washington, the Court held that the government is required to call a live witness, who will be subject to cross-examination.  The use of an affidavit for this purpose violated the Confrontation Clause.  This case is likely to draw criticism for the cost it places on the prosecution when a defendant exercises his right to a trial.  However, it also creates opportunities for criminal defense lawyers to show juries how sloppy lab work and overzealous technicians can lead to false results.  Vigorous cross examination by an experienced attorney is essential to the truth-seeking function of a trial.  If a person is wrongly accused, he must have the opportunity to confront his accusers, including a technician who claims he has analyzed the right drugs and that the analysis was positive.

June 24, 2009: Margulis-Ohnuma obtains reversal of sex abuse case.  The Second Department Appellate Division of the New York Supreme Court corrected an appalling conviction last week when it reversed People v. Montoya, a case of alleged sex abuse by a neighborhood handyman in Brooklyn. The appeals court found a number of errors at trial -- the defendant was not properly warned about how he would be cross examined, the defense lawyer was not allowed to cross examine or call witnesses on key points, and confusing, prejudicial testimony was left uncorrected on the record, just to name a few.  One of the counts of conviction simply had no evidence at all to support it.  The case illustrates how easy it is for authorities to obtain a false conviction when emotions run high in a trial -- and, more than two years after the trial, how hard it is to undo a wrongful conviction even where the trial was grossly unfair.

June 11, 2009: Attorney Zachary Margulis-Ohnuma helps train budding lawyers in the art and science of trial advocacy.  Mr. Margulis-Ohnuma joined a group of criminal practitioners from the New York City Bar Association's Committee on Criminal Advocacy for two mock trials at the Acorn High School for Social Justice in Brooklyn.  The group taught ninth- and tenth-graders how to try the make-believe case of People v. Kramer, a mugging on a dark, rainy street.  Cast against type, Mr. Margulis-Ohnuma worked with the prosecution "lawyers" and witnesses, who did a fabulous job with opening statements, closing arguments and, especially, withering cross-examinations.  Many thanks to SEC attorney Lara Mehraban and the other great attorneys who volunteered their time, as well as the kids whose passion for the law made us all want to come back year after year.

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May 19, 2009: New York High Court Rules GPS Requires a Warrant.  In People v. Weaver, the New York Court of Appeals held last week that the placement of a GPS tracking device on the undercarriage of a car is so intrusive as to constitute a search "of constitutional dimension and consequences."  Except in narrow, well-defined circumstances, searches require warrants in the United States.  As a result, a conviction based on the warrantless placement of a tracking device was overturned.

Quoting the mighty Justice Jackson, the Nuremburg prosecutor and liberal Supreme Court Justice who in 1947 was already far ahead of his time, Judge Lippman wrote for the majority: "GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period.... That such a surrogate technological deployment is not — particularly when placed at the unsupervised discretion of agents of the state 'engaged in the often competitive enterprise of ferreting out crime'  — compatible with any reasonable notion of personal privacy or ordered liberty would appear to us obvious."

The Court also gave a nod to the "New Federalism," pointing out that the issue of whether GPS placement is a search is unsettled in the federal courts.  As a result, the decision was based on the New York State Constititution alone.  As a result, the Court explained, if the United States Supreme Court does not ultimately adopt the rule set forth in Weaver, the State Constitution would provide a broader protection and still bar the warrantless placement of a GPS on a car.  Click People v. Weaver to read the whole case.

April 22, 2009: Supreme Court Expands Fourth Amendment Protection for Searches of Automobiles. For the past 28 years, police officers have relied on the Supreme Court's decision in New York v. Belton to justify searching cars after removing the occupants. The original rationale for such searches was not totally unreasonable: cops needed to search the "grab area" as they were arresting the person to make sure they did not get shot at and needed to secure evidence that, since it was in a car, could literally be driven away. But the application of the rule got ridiculous: police were allowed to search cars in case after case, after they had removed and handcuffed the occupants. In a decision handed down yesterday called Arizona v. Gant the Supreme Court put a stop to it. The case involved a particularly egregious search. Rodney Gant was driving with a suspended license, pulled into his driveway, got out of his car and started walking away from it. He was arrested and cuffed 10 or 12 feet from his car -- for driving with a suspended license. But police suspected Mr. Gant was involved with drugs so they tossed his car and found cocaine in a jacket pocket. At the hearing, the officer was asked why they searched the car. "Because the law says we can do it," testified the officer.

Actually, the law says you can't. The reason warrantless "Belton searches" were allowed was to protect officers' safety and preserve evidence of actual crimes. They were not intended, at first at least, to let officers rummage in people's cars in the hopes of finding evidence of a crime. In Mr. Gant's case, the Supreme Court ruled, there was no reasonable possibility that the car could contain any evidence of the crime committed -- driving with a suspended license. Mr. Gant was cuffed at the time of the search. Thus there was no justification for a warrantless search of the car. Here is how the ever-articulate Justice Stevens concluded the decision, which, by the way, was joined by both Justice Thomas and Justice Scalia:

The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely "within the area into which an arrestee might reach," and blind adherence to Belton's faulty assumption would authorize myriad unconstitutional searches. The doctrine of stare decisis does not require us to approve routine constitutional violations....Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

April 21, 2009: Zachary Margulis-Ohnuma tapped for Spanish-language commentary on the arrest and prosecution of the Somali pirate on Univision.

April 15, 2009: Drug sentencing reform becomes law. Last week, Governor Patterson signed a comprehensive bill into law that has the effect of overhauling sentencing for New York state drug offenders. In a departure from the notoriously harsh Rockefeller Drug Laws enacted in the 1970s, judges now have complete authority to divert drug addicts into treatment, rather than prison. This has the effect of shifting power into the hands of sentencing judges and away from prosecutors, who used to be able to obtain any result they wanted by threatening charges with harsh mandatory sentences. The new law applies differently in each case; as the provisions get put into practice, attorneys will need to carefully research the particulars of their clients' situations. Nonetheless, the Center for Community Alternatives has put together this useful New York Drug Sentencing Chart which summarizes the new provisions. Please call our law office at (212) 685-0999 if you have questions about how this law might affect your case.

January 6, 2009: Margulis-Ohnuma to Argue Key Sentencing Guidelines issue at Second Circuit. On January 27, 2009, the United States Court of Appeals for the Second Circuit will hear oral argument in the case of United States v. Ortiz. The most significant legal issue in the case is the following question: if a sentencing guideline is increased by the Sentencing Commission after a person completes a crime (but before he or she is actually sentenced), is it constitutional for the judge to use the new, higher guideline? In other words, does application of a higher sentencing guideline that was amended after a crime was completed violate the Ex Post Facto Clause of the United States Constitution? Back when the Guidelines were mandatory, all courts considering this question found that such an application was unconstitutional. Since the 2005 watershed decision in United States v. Booker, however, one circuit court (the Seventh) has found that basing a sentence on a new, increased guideline was permitted. Prosecutors have slowly but surely come around to the idea that the Guidelines are so advisory -- i.e. play so insubstantial a role in sentencing -- that they can be changed retroactively without violating the Ex Post Facto Clause. As far as we know, however, the Ortiz case is the first time that the government has urged the Second Circuit (which covers all of Brooklyn, Manhattan, the Bronx, the rest of New York and parts of New England) to change its longstanding view of the Guidelines and to let them be applied retroactively to the detriment of the defendant. The unfairness of such a position seems almost too obvious to state: the Sentencing Commission, which writes the Guidelines that are the driving force behind roughly 85 percent of all sentences, should be restrained by the Constitution just like any other law- or policy-making body. There is no deterrent effect, or any other purpose served, from an increase in punishment once a crime is complete. Both the government and the appeals courts have long understood this; there is no reason for a change now.

January 5, 2009: Gatto Backs Off. After obtaining more not less publicity in his effort to file a secret lawsuit against Margulis-Ohnuma client Jerry Capeci, Staten Island bus magnate Dominic Gatto has finally called off the dogs. First, the New York Times ran this piece about the proposed lawsuit. Then, the Appellate Division, Second Department, turned down Gatto's motion in a terse Decision & Order dated April 2, 2008. We have not heard from Mr. Gatto's attorneys since. For more, the whole debacle is chronicled here.

February 10, 2008: Retroactive crack-cocaine amendment implementation approaching.  Starting March 3, 2008, defendants convicted in federal court of crack-related offenses who were sentenced under the notorious "100-1" crack-powder provisions of the United States Sentencing Guidelines will be able to go back to their sentencing judge and ask for a new sentence.  Recent revisions to the Guidelines have shortened crack sentences substantially.  Perhaps more importantly, people who were sentenced in federal court before the decision in United States v. Booker in 2005 can have their cases heard under the new, advisory Guidelines scheme.  For those who did not benefit from a downward departure in their original pre-2005 sentence, this could mean a substantial opportunity to have the court take another look in determining a just, reasonable and constitutional sentence.  If a loved one qualifies for resentencing under the revised Guideline, or you have questions about it, please call our law office at (212) 685-0999.

February 7, 2008: Allegedly mob-connected school bus magnate requests permission to file secret lawsuit against journalist Jerry Capeci.  Dominic Gatto, the head of a Atlantic Express, one of the country's largest school bus operators, did not like a column about him posted by Jerry Capeci, the noted New York Mafia expert represented by attorney Zachary Margulis-Ohnuma.  But he did not want to face the pressures of a public lawsuit.  So he sent his attorneys -- Michael Weiner of Manhattan and Anthony Ruffini of Staten Island -- to New York Supreme Court, Richmond County (Staten Island, New York) for an Order to Show Cause asking Judge Anthony I. Giacobbe to let him file the suit secretly.  If Gatto had to file the lawsuit in public like everyone else, Weiner and Ruffini argued -- he would suffer "irreparable harm."

Margulis-Ohnuma pointed out that Gatto seems less interested in suing and more interested in trying to push Capeci around.  Won't work: Judge Giacobbe refused to sign the proposed Order to Show Cause and took Gatto's application under advisement.  "Gatto was seeking unprecedented relief in an effort to bully Capeci," Margulis-Ohnuma said.  "We don't have secret lawsuits in this country."

December 27, 2007: Attorney Margulis-Ohnuma appointed to the SDNY CJA Panel.  We are pleased to announce that, effective January 1, 2008, Principal Attorney Zachary Margulis-Ohnuma was appointed to the Criminal Justice Act panel for the United States District Court for the Southern District of New York, the nation's leading trial court.  In his capacity as a CJA attorney, Mr. Margulis-Ohnuma will be offering free, court-appointed legal services to indigent defendants charged in multi-defendant cases in the Southern District of New York.  "I am delighted to have the opportunity to help poor people caught up in the federal justice system by serving on the CJA panel in Manhattan," said Mr. Margulis-Ohnuma.  "The SDNY CJA Panel includes some of the best criminal trial lawyers in the world, pursuing the American vision of providing effective counsel to anyone who needs as required by Gideon v. Wainwright. It is humbling to be added to their numbers."

November 15, 2007: More fallout from the "Moll Tapes".  The Kings County District Attorney's office not only dropped the case against R. Lindley DeVecchio, but requested a special prosecutor to look into perjury charges against Linda Schiro.  Leslie Crocker Snyder, a politically ambitious former judge, will head the investigation.  Judge Snyder founded the Manhattan District Attorney's office special sex crimes unit; she also helped write the Rape Shield law which excludes evidence of an alleged victims' sexual past in sex crimes trials.  Snyder was dubbed "dragon lady" in an in-depth Village Voice profile by Margulis-Ohnuma client Tom Robbins when she ran for Manhattan district attorney two years ago.  She will no doubt take a hard look at Schiro -- and depend largely on Robbins' reporting with co-author Jerry Capeci to make her case.  Let's hope she respects the reporters' rights under the Shield Law in her quest for justice.

Meanwhile, Tom Robbins gave a thoughtful blow-by-blow about how the tapes came public -- and what it all means to reporters -- in last week's Village Voice.  Read Tom Robbins' account .  And Jerry Capeci's Ganglandnews.com continues to cover the story -- including the Brooklyn DA's missteps -- with the usual insider's punch.  It is insider's coverage that is a must-read all around.  Read the latest from Capeci.

October 31, 2007: Brooklyn district attorney to drop case against former FBI agent Lindley DeVecchio after Margulis-Ohnuma client Tom Robbins reveals ten-year old tapes contradicting the main prosecution witness.  The Kings County District Attorney's office has been prosecuting ex-FBI agent DeVecchio for allegedly providing information to mob informant Gregory Scarpa that led Scarpa to murder four individuals.  The main witness against DeVecchio is Scarpa moll Linda Schiro, who testified this week that Scarpa and DeVecchio discussed information relating to the murders openly in front of her.  Problem is, in tape recordings made ten years ago, Schiro told ace reporters Tom Robbins and Jerry Capeci that DeVecchio had nothing to do with three of the four murders.  When the defense tried to subpoena Capeci prior to the trial for his notes relating to interviews with Schiro, the famed Gangland columnist -- known as the foremost authority on the New York mafia -- turned to former Daily News colleague Zachary Margulis-Ohnuma for help quashing the subpoena.  The court agreed and Capeci's confidentiality arrangement with Schiro was not violated.

But after Schiro testified -- in 180-degree contradiction to her statements to Capeci and Robbins -- Robbins decided he could not remain silent in the face of the risk that an innocent man might go to jail based on a lie.  After consulting about the legal consequences with Margulis-Ohnuma, he decided to print the story in the Village Voice .  That waived the New York reporter's privilege and Robbins, with Margulis-Ohnuma's assistance, complied with subpoenas for the tapes.  Although the district attorney demanded all Robbins' work regarding Schiro, Robbins was required to turn over only the material he wrote about -- i.e. relating to the four murders.  That appears, though, to have been enough to persuade the district attorney's office to dismiss the case.  Check out Channel 4's thorough coverage.

October 25, 2007: Former MDC Brooklyn Captain acquitted of civil rights charge, convicted of conspiracy and false statements.  After a hard fought trial in the Eastern District of New York, Margulis-Ohnuma client Salvatore LoPresti was convicted of six out of seven charges brought, but acquitted of the key charge of violating another person's civil rights.   Full details of the LoPresti case are available in the New York Times.

April 11, 2007: Margulis-Ohnuma Wins Reversal of Conviction in the Second Circuit Court of Appeals.   In a detailed decision about the propriety of government evidence relating to the state of mind of the accused, the Second Circuit reversed five out of seven counts of conviction against a former attorney who was represented by Zachary Margulis-Ohnuma.  The federal appeals court found that the district court made three errors, one of them enough to reverse on the five fraud counts.

The reversible error was the improper admission of lay opinion testimony -- unsupported testimony by a cooperator as to what the cooperator thought the defendant meant when he said certain words.  The second error -- and the court did not reach the question of whether it was reversible, since the opinion testimony required reversal -- was testimony about what others knew used to prove what the defendant knew.  The final error was an erroneous "conscious avoidance" instruction given with respect to an obstruction-of-justice count without proper foundation.  To get the full story, read the circuit decision.

February 6, 2007: Attorney Zachary Margulis-Ohnuma Wins Gun Trial.  A Brooklyn, New York jury acquitted defendant Jerome Williams of one count of gun possession and one count of menacing after a hard-fought three-week trial conducted by Zachary Margulis-Ohnuma.  The jury deadlocked on one additional count.  The case was especially interesting because Mr. Williams was shot from behind in the course of being arrested.  "Victories in criminal trials are unusual, but here the jury saw that the incident could not have possibly happened the way the police said it did," said Mr. Margulis-Ohnuma.  "Both I and Jerome are grateful for the hard work of the medical expert, Dr. Richard Sullivan, and the investigator, Michael Pizzi.  Jerome's family pulled together to obtain a just result against terrible odds.  My heart goes out to them."

July 14, 2006: Attorney Zachary Margulis-Ohnuma wins SORA appeal for wrongly-classified sex offender.  In a precedent-setting case in the Second Department, an appellate court lowered the risk level of Margulis-Ohnuma's client from Level Three to Level Two, which would expunge him from the registry altogether if pending litigation is resolved in favor of the Doe class.  A unanimous appellate panel found that the Supreme Court failed to give sufficient weight to the fact that Margulis-Ohnuma's client had become rehabilitated over 17 years of "exemplary" living.  The SORA appeal case was featured in the local press.  Read the decision of the Supreme Court, Appellate Division for the Second Department.