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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.

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Prosecutors in New York state who commit even egregious misconduct are virtually untouchable. In today’s New York Times, Nina Morrison of the Innocence Project chronicles a Suffolk County homicide prosecutor who not only held back exculpatory evidence, but doctored documents to try to actively hide them from the court. After a little digging, it turned out that the same prosecutor, Glenn Kurtzrock, was responsible for misconduct in four additional cases. If you or I did that, we would go to jail.

But not a prosecutor.

As Ms. Morrison writes: “So what’s happened to Mr. Kurtzrock? Nothing. Thirteen months after his public firing, and five murder cases overturned because of his illegal actions, Mr. Kurtzrock hasn’t been charged with a single crime. Not fraud, not tampering with government records, not contempt of court.” Moreover, he cannot be sued. A long line of Supreme Court cases gives prosecutors “absolute immunity” from civil rights suits, even when they directly violate someone’s constitutional right to exculpatory evidence, as Mr. Kurtzrock apparently did.

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Under the Sex Offender Registration Act, registered sex offenders must tell New York State about all “internet accounts with internet access providers” and “internet identifiers that such offender uses.” Does that mean you have to disclose your social media accounts?

Most police and the the State Division of Criminal Justice Services would have said yes. Police agencies routinely scour the internet looking for sex offenders who are on social media but have not properly disclosed their presence. People always thought hiding a social media account was a felony — failure to register under Corrections Law Sec. 168-t.

Turns out it is not.

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https://www.zmolaw.com/news/wp-content/uploads/2018/05/Screen-Shot-2018-05-09-at-10.26.52-AM-300x298.pngThe abrupt resignation of New York Attorney General Eric Schneiderman Monday night left the legal community scratching its head. How could such a bright star, who consistently used the power of his office to fight for just causes, especially for women, have fallen in such rapid and spectacular fashion?

The answer, of course, is that people are complicated.

Schneiderman’s initial response to the New Yorker’s story about four women accusing him of abuse was not encouraging: in a statement quoted in the article he asserted that he never assaulted anyone but admitted he engaged in “role-playing and other consensual sexual activity” in the “privacy of intimate relationships.”  In essence, he told the New Yorker he didn’t do it, but if he did do it, it was consensual.