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Alcatraz09-225x300Our office had two happy results in cases in the last twenty-four hours, just in time for the Thanksgiving holiday. I won’t use names to protect client confidentiality, but here is the short version of how two men will pass a more peaceful Thanksgiving than they have in a long time.

Our first client was in prison in Virginia for years for trafficking in cocaine while he was on federal supervised release. After his Virginia prison term ended, he was brought to the Southern District of New York to face sanctions for violating his release terms. Although he had a long rap sheet, he did well in Virginia prisons, completing numerous courses and garnering praise from his work supervisors in jail. He was ready to be released, but, although he had family around the country, there was no plan for him. We nonetheless asked for time-served and the federal judge asked us to come back with a plan in a few weeks, that is, yesterday. We proposed also making a written submission to aid in sentencing and present what we learned about the client’s success in jail.

So associate attorney Victoria Medley got to work, calling around potential drug rehabilitation programs near the client’s family members in Maryland. Calls went unanswered, paperwork was required, and the whole effort seemed mired in bureaucracy. Eventually, though, a suitable program was found and told us, in principle, that he would be accepted. We submitted a detailed brief to the judge about the client’s progress in prison, and explaining the unique circumstances that caused him to go off the rails and back into drug dealing years ago. We showed up to court yesterday expecting that he would be detained through the holidays until an actual rehab bed could be secured, confirmed, paid for and, basically, guaranteed.

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adults-business-connection-1181715-300x200People who seek out criminal lawyers are human beings, in all their vast complexity. An important part of our jobs as lawyers is to reveal the full person to the court: their prior conduct, the quality of their relationships, their health and addiction issues, and their prospects for the future. If a case cannot be won at trial, then these factors make all the difference in obtaining a fair sentence at the end of the day. We have always known from our day-to-day practice that presenting the person to the court, looking beyond the crime, beyond the past, and toward the future, makes a huge difference in avoiding prison or getting a short, just sentence. Now, there is a study showing just that.

This morning the Rand Corporation and the University of Pennsylvania Law School released a study to be published in the Harvard Law Review analyzing a mountain of data tailor-made to compare the holistic approach with an approach that has less resources to present the whole person to the court. Researchers looked at clients of the Bronx Defenders and the Legal Aid Society facing charges in the Bronx over a ten-year period. The two law offices pretty much split the clients between them based on rotating shifts in court. Each office represented about half of 587,000 cases that were looked at. The two organizations’ approaches were a bit different though, with Bronx Defenders offering more “holistic” services, with lawyers leading teams that could include social workers, housing advocates, investigators and other specialists to address the client’s “wider needs.” Legal Aid put more emphasis on the traditional role of criminal defense lawyers. The study — which should not be seen to pit the two approaches against one another — concluded that “the holistic approach reduced the likelihood of a prison sentence by 16 percent, and actual prison sentence length by 24 percent.” In drug and larceny cases, the effects on sentences were even greater, 63 and 72 percent respectively.

However, Legal Aid noted in press reports that the data came from the “broken windows” era of policing in New York City when arrest rates for low-level misdemeanors were historically high and caseloads, especially for Legal Aid citywide, were crushing. Since then, arrests are down and caseloads for defender organizations have been capped. Both organizations are asked to defend clients under the most difficult imaginable circumstances with exceedingly limited resources, and rely on the public-spirited devotion of smart, hard-working — and underpaid — attorneys to, in most cases, achieve just outcomes for their clients.

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IMG_1123-e1539730197788-300x176With a heart full of joy, I had the unique pleasure of attending the wedding of Felipe and Karen Rodriguez last month. Felipe has been my client since the summer of 2015, when I signed up to assist the Innocence Project in representing him in his claim that he was wrongfully convicted of a 1987 homicide in Queens. Gov. Mario Cuomo granted Felipe clemency at the beginning of 2017. The clemency petition really had two parts: Felipe was just about the best inmate the prison system had ever seen, and there was basically no credible evidence supporting his conviction. He renovated the prisons he resided in and counseled serial killers no one else would talk to. He ran a Catholic prayer group and started a newsletter. He was so trusted that he was put in charge of caustic chemicals at one of the prisons he was assigned to. He did 27 years, and we are still fighting to prove his innocence in the courts. Felipe’s case was profiled in detail in the Daily News last Christmas — and he has thrived since then.

After he got out, Felipe was reunited with his son, who had last seen him on the outside as a toddler. But Felipe and Felipe Jr. kept in touch over the years, shedding tears of joy on the meadow in front of Eastern Correctional Facility on the day of Felipe’s release. And Felipe has thrived in the two years he has been out, proving Gov. Cuomo’s judgment to be sound. He works long hours in a hotel and takes care of Karen and her two boys, whom he considers to be his sons. They met as she was waiting tables, and he was lonely and tired after a long day of work. The wedding was a glittering occasion in the greatest tradition of New York City. The ceremony was in an office overlooking Washington Square Park, presided over by a prominent criminal lawyer who was just appointed as a judge. The party afterward was at a nearby Italian restaurant in Greenwich Village. The judge was there, along with the former editor-in-chief of the Daily News, the former president of NYU, a retired fire chief that Felipe befriended through the prison ministry, and my brilliant co-counsel on the case, Nina Morrison of the Innocence Project, along with a bevy of Karen’s friends and relatives. Felipe and Karen’s boys danced long past their bedtime.IMG_0707-300x300

The main witness against Felipe has unequivocally recanted his testimony. The district attorney’s office is looking at the case. I believe that it is only a matter of time before Felipe’s exoneration is complete, and the failures that gave rise to his wrongful conviction in 1990 are exposed. Nothing will give Felipe back the 27 years he lost, but he is determined to live a lifetime of joy in the precious years of freedom he has left.

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According to an article in the New York Post that was picked up in Newsweek, the City of New York has paid out $384 million in settlements for police abuse cases filed in the last five years. The recipient of the largest slice of that pie? Antonio Yarbough, our client since 2008 who was exonerated in 2014. Antonio  and his co-defendant Sharrif Wilson were framed by NYPD officers for the 1992 slaughter of Antonio’s family by a killer who went on to kill again seven years later and has never been caught. Starting on the day Antonio found his mother, his sister, and a 12-year-old friend stabbed and strangled in Coney Island, he and Sharrif were wrongly imprisoned for nearly 22 years. They were released after DNA found under Antonio’s mother’s fingernails linked the murders to a similar slaying of a young woman in Sunset Park in 1999.

According to the articles, data released by the City’s Corporation Counsel shows that 37 cases were settled for $1 million or more, accounting for about half of the total payout. Most cases were much smaller. Of the more than 11,000 cases that were brought over the five-year time period, only about half settled at all. Three thousand of the cases settled for between $5,000 and $25,000, which is typical for a false arrest that does not lead to more than a night in jail.

Many of the largest settlements like Antonio’s come from a more violent time, when police were overwhelmed with murders and would do anything to close cases. Money can never make up for the wrongful loss of freedom, but these settlements help the victims of police misconduct heal. Hopefully, they also help deter policies and practices that lead to abuses by a small minority of police.

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https://www.zmolaw.com/news/wp-content/uploads/2018/08/Screen-Shot-2018-08-31-at-3.19.38-PM-300x214.pngWhen Michael Cohen signed his plea agreement last Tuesday at the Southern District of New York, he was affixing his signature to one of the most important documents in recent memory: a sworn admission that he conspired with the president of the United States to violate a federal law to get him elected. But the document Cohen signed was in many ways pure boilerplate, the same language used in hundreds of pleas in the Southern District every year. Our office represents a lot of defendants in the Southern District and many of those cases end in plea deals like the one Michael Cohen received. So here is a quick primer on what the plea agreement means.

First, even though there is an agreement, no one knows what Cohen’s sentence will be. He is out on bail and he is probably hoping never to see the inside of a prison cell. There are sentencing considerations set forth in the agreement (much more on those below), but they do not bind the judge. Unlike in state court, federal defendants almost always plead guilty without knowing what their punishment will be.

Second, the document Cohen signed is not a cooperation agreement. A cooperation agreement is an agreement where the defendant promises to plead guilty and cooperate fully with the government, providing information and making himself available whenever prosecutors want to speak to him (in federal practice, we use the term “government” to mean the prosecutors). In return, the prosecutors promise to file a “5K motion” — a letter that allows the sentencing judge to avoid any applicable mandatory minimum sentence and may urge the judge to sentence below the sentencing Guidelines. In Cohen’s case, there is no mandatory minimum, so the 5K motion will not be as significant as it would be in, say, a drug trafficking case. When a mandatory minimum is charged, and the defendant is convicted (either by guilty plea or after trial), the only way to avoid the minimum sentence is by getting the government to file a 5K letter. In other words, because the crimes that Cohen was charged with do not carry a mandatory minimum, Cohen can still cooperate and get the full benefit he would have received with a cooperation agreement, but with fewer obligations. He might very well be cooperating, just without an agreement. If he is, he is putting his trust in the office prosecuting him. Seven government attorneys were listed on the plea agreement. He is trusting them to urge the judge to lower his sentence if he is helpful to the government. That’s fine, as long as everyone gets along as they work together to build a case against the president of the United States.

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Getting out ahead of the difficult problem of prosecutorial misconduct, New York Governor Andrew Cuomo yesterday signed a bill creating a new commission empowered to investigate allegations against prosecutors. But in a Signing Memorandum dated today, Cuomo announced that the legislature had agreed to modify the bill in the next session to address concerns that it violates the New York State Constitution and could disrupt ongoing criminal cases. Specifically, according to the Signing Memorandum, the law will be immediately amended so that the new commission will not include active, sitting judges; the Appellate Division (rather than the Court of Appeals) will oversee its decisions; and the composition of the eleven-member commission will be “balanced.” In addition, and perhaps more concerning, the amendment will “protect active, pending investigations.” While it is not clear exactly what that means, I suspect that a person with a grievance against a prosecutor during an active criminal case would have to wait until the case is concluded to initiate an investigation by the new commission. That makes sense — but only as long as trial judges maintain their independence and are willing to provide a remedy for prosecutorial misconduct within the criminal case itself.

In the signing statement, the governor clearly endorsed the spirit of the bill as written: “At its core, our criminal justice system must fairly and consistently investigate and prosecute claims, convict the guilty and exonerate the innocent, without regard to race, ethnicity, gender, sexual orientation or any other protected classification. When any prosecutor consciously disregards that fundamental duty, communities suffer and lose faith in the system, and they must have a forum to be heard and seek justice.”

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In the Daily News yesterday, Judge Frederic Block of the Eastern District of New York — who handled the Jabbar Collins civil suit that ended in a $13 million bill to taxpayers to compensate for police misconduct in Brooklyn — urged Gov. Cuomo to sign the bill creating a commission on prosecutorial conduct. Ethical, self-confident district attorneys will welcome the oversight. The District Attorneys Association of the State of New York is wrongheaded to oppose it.

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Wrongful convictions are life-destroying not only to people wrongfully convicted but also to crime victims, especially victims of future crimes that could have been prevented had the right person been prosecuted in the first place. Prosecutors are almost never disciplined, let alone prosecuted themselves, even for the most egregious misconduct such as holding back exculpatory evidence or knowingly presenting coerced testimony.

Judge Block, who has overseen an active criminal docket for nearly a quarter of a century, writes that trial judges are not in a position to prevent prosecutors’ abuse: “If a prosecutor withholds or tampers with evidence, we probably won’t know about it. And even when we discover that prosecutors have committed serious constitutional violations, our power to directly sanction them is extremely limited.”

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Oral argument will be heard tomorrow before the Hon. John L. Michalski in Erie County Supreme Court on one simple question: are Brian Lorenzo and James Pugh entitled to DNA testing?

The two men have been in prison for the past quarter century for the stabbing-and-strangling murder of Deborah Meindl, a 33-year-old mother of two, in North Tonawanda, near Buffalo, New York. The crime scene was brimming with biological evidence, none of it ever tested by modern methods. Our client, Jimmy Pugh, has always maintained his innocence, even though he is eligible for parole. No physical evidence linked him in any way to the crime scene and there is no evidence that he knew the victim, her family, or anyone associated with him. The crime scene evidence is carefully preserved in a police locker. DNA testing can exonerate Pugh and Lorenzo — or decisively prove their guilt once and for all.

Nonetheless the Erie County District Attorney’s Office opposes any DNA testing.

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photo_55295_20151127-300x236Your phone constantly tracks and records its location and transmits the information to your wireless carrier. Most phone companies keep that data — known as “cell site location information” — for up to five years. And until last week, it was pretty much available to the government for the asking.

Think for a moment what that means. If you went to a psychiatrist, a divorce lawyer, an AA meeting, a yoga class, or a 1980s dance party in the last five years, any policeman in the country could find out about it just by asking the phone company where your phone was at a given moment in time. It is as though the government placed permanent tracking devices on all of us. True, under federal law, the police had to ask for a court order under the Stored Communications Act based on a showing that the cell site data was “relevant and material to an ongoing investigation.” But that is a ridiculously low standard: pretty much anything an investigator wants to see can be tied to an investigation one way or another. Orders under 18 U.S.C. Section 2703(d) were, in practice, routinely granted by both state and federal courts.

All that changed last Friday when a fractured Supreme Court ruled in Carpenter v. U.S. that grabbing cell site data constitutes a search under the Fourth Amendment. That means that use of cell site data must be reasonable. For police investigations, a search is only reasonable if it is based on a search warrant supported by probable cause. Probable cause, the Court explained, is something more than the low standard in Sec. 2703(d): “relevant and material” just means cell site evidence “might be pertinent to an ongoing investigation,” whereas probable cause requires a “quantum of individualized suspicion” before police can start rummaging. So a Section 2703(d) subpoena is not enough to support obtaining cell site data. Mr. Carpenter’s conviction, based in part on cell site location data showing his phone was near several stores at the time they were robbed, was thrown out.

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https://www.zmolaw.com/news/wp-content/uploads/2018/06/Screen-Shot-2018-06-21-at-9.47.54-AM-300x146.pngOn Tuesday, the New York State Assembly passed A. 5285-C, the State Commission on Prosecutorial Conduct bill that passed the Senate in a surprise vote last week. Now it’s up to Gov. Andrew Cuomo to sign it into law. Groups like Human Rights Watch and the New York State Association of Criminal Defense Lawyers will be pushing him to do just that, which would create the country’s only investigative body exclusively investigating misconduct by prosecutors.

At the same time, some district attorneys around the state are likely to lobby to stop the bill. They will complain that a commission would have too much power, would dampen their ability to enforce the law fairly, and could interfere with ongoing prosecutions. They will see a violation of separation-of-powers and uncabined discretion vested in unelected commissioners including criminal defense lawyers bent on obstructing the work of prosecutors. Litigation will follow.

So what does the proposed law actually say? The full text is available here or by clicking the graphic above. In fact, the proposal is modest. The commission will be made up of volunteer judges, prosecutors and defense lawyers appointed by the governor and the legislature. It may investigate virtually any complaint against a prosecutor. It will have subpoena power. Its business will generally be conducted in public. But it won’t have any remedy with teeth: at the end of its investigation, all it can do is refer its findings to the governor or an appropriate court. It would be up to the governor or court to take action, removing a prosecutor for cause in appropriate circumstances. In other words, all the commission can do is serve as a conduit for information — information that an unscrupulous prosecutor’s colleagues have an ethical obligation to report in any event.