Zachary Margulis-Ohnuma, Author at What's New

Celebrating Five Years of Freedom

June 23, 2019 | by Zachary Margulis-Ohnuma

The clouds parted just in time for Antonio Yarbough to enjoy a piece of cheesecake on a Manhattan rooftop last Thursday. He was celebrating five years since he walked out of a Brooklyn courtroom a free man. But he still does not know who killed his family.

IMG_3241-225x300 EVWSG4FLI66A4VDF6ZCFQUHW2M-200x300 Friends, relatives, reporters, and not-a-few lawyers gathered to honor Tony and help him celebrate his exoneration, just as we celebrated on a Manhattan rooftop in June 2014. Tony’s wrongful conviction for the slaughter of his family — which was actually committed by an unknown man who raped and murdered a fourth person seven years later — was one of the most appalling episodes of the reign of Charles Hynes as Brooklyn District Attorney. Hynes was defeated by Ken Thompson in 2013. Thompson agreed Antonio should be released after just five weeks on the job.

Antonio has spent the last five years recovering from what the state did to him. He has reconnected with his extended family and old friends. He has made new friends. He has worked at a hotel. He now donates his time to the Alliance of Families for Justice, where he sits on the board (alongside actor Danny Glover) and provides support for families affected by the criminal justice system. Antonio has touched countless lives with his quiet grace and heroic resilience. As he said on Piers Morgan the day after his release, he has no time for bitterness.

Is there illegal child pornography on YouTube?

June 3, 2019 | by Zachary Margulis-Ohnuma

Federal Child Pornography Lawyer Discusses YouTube Algorithm | Law Office of Zachary Margulis-Ohnuma An article in today’s New York Times suggests that there is an “open gate for pedophiles” on YouTube because of the way the video hosting service suggests videos to users.

If you look at one video of a partially clothed child on YouTube, the service’s algorithm will send you to more and more videos that are similar, the Times reports.

That has the effect of turning harmless videos of children into “sexualized imagery.”

District court lowers sentence from 225 to 200 months after appeal. Still too long, appeals court says.

May 13, 2019 | by Zachary Margulis-Ohnuma

A 200-month sentence imposed on a first-time child pornography offender was thrown out by the Second Circuit Court of Appeals on Friday because the judge erroneously assumed that the defendant must have committed a prior sex offense.

The reversal was the second time that the circuit court vacated the sentence imposed on Joseph Vincent Jenkins, who was convicted after trial of transporting child porn on thumb drives and laptops as he traveled to his parents’ vacation home in Canada. The first sentence, 225 months, was too long because there was no basis for Chief Judge Glenn T. Suddaby’s conclusion that Jenkins was at a high risk to re-offend. Jenkins had never been convicted before, was not accused of attempting to harm a child, and “never spoke to, much less approached or touched, a child.”

This time, Judge Suddaby erroneously imposed nearly seventeen years on a first-time, non-violent, child pornography offender by cherry-picking studies that, he said, showed that sex crimes against children are much more common than what is reported. He found that studies show “inconsistent findings concerning the prevalence rate of sex offending by non-production offenders.” Judge Suddaby went on to note features of Jenkins’s personality identified in a competency report, which, he said were correlated with sexually dangerous behavior. Based on this analysis, Judge Suddaby concluded that “it was likely that Jenkins had committed a prior–undetected–sex offense, that he therefore had a high risk of recidivism, that a lengthy sentence was justified.”

Busted in NY? Three Ways it Will Be Easier to Win Your Case

April 23, 2019 | by Zachary Margulis-Ohnuma

This year’s New York State budget passed earlier this month with the most sweeping criminal justice reforms in at least a generation. The changes go into effect in 2020 and will change almost everything about defending people in New York State cases, where the vast majority of arrests in New York are handled. How will they affect your case? Read on.

First, “Discovery Reform” will replace the New York “Blindfold Law.” Under the current system, defense lawyers learn only what DAs want to tell them abut the case until the moment before trial. Under the new rules, starting on January 1, 2020, discovery is going to be “open, early and automatic.” That means that prosecutors will have to hand over all information about the case “as soon as practicable” but not more than 15 days after the defendant is arraigned, at least in most cases. And discovery is much broader than it ever was, including not just trial exhibits but also all witness statements, all grand jury minutes (not just of testifying witnesses), names and contact information for all potential witnesses, exculpatory information, and pretty much anything else in a prosecutor’s file. If you are being charged with a felony, you get your own statements at least 48 hours before the grand jury presentation–that can give you a chance to testify in the grand jury without worrying about getting tripped up by a statement you made previously to a detective. Perhaps most importantly, if the DA makes a plea offer, you are entitled to full discovery before the DA can withdraw the plea offer. Prosecutors cannot condition the plea offer on a waiver of discovery rights. No longer will defense lawyers ask for discovery during plea negotiations only to be told, sarcastically, “your client knows what he did.” Click the link for Part LLL of Chapter 59 of the New York State Laws of 2019, the full text of the new New York criminal discovery rules.

Second, you have a much better chance of getting released while your case is pending under New York state’s new bail rules. There will be mandatory release for all misdemeanors and non-violent felonies–except, of course, sex offenses (and cases involving contempt of domestic violence court orders). For more serious offenses, the court can only set money bail with the least restrictive conditions and with at least three options or ways to pay: cash, unsecured bond, and partially secured bond. Electronic monitoring can be used to prevent flight in serious cases, but you won’t have to pay for it and there are many limitations. If the court sets a monetary bail, it will have to consider the defendant’s ability to pay and any undue hardship, and it put its reasoning on the record. As a practical matter, the reforms should lead to fewer thoughtless decisions over bail that needlessly separate people from their families even though they are presumed to be innocent. Click the link for Part JJJ of Chapter 59 of the New York State Laws of 2019, which shows the amendments to the bail rules and Desk Appearance Ticket provisions.

Conviction Overturned for Client Accused of Importing over 100 Kilos of Heroin

April 9, 2019 | by Zachary Margulis-Ohnuma

Judge Raymond Dearie of the Eastern District of New York ruled yesterday that ZMOLAW client Adamou Djibo is entitled to a new trial because the government wrongfully withheld thousands of pages of relevant information from a cooperating witness’s cell phone. The reversal follows a remand from the Second Circuit: the appeals court directed the trial court to permit Djibo time and public funds to obtain a full translation of the material, which turned out to contain messages in Swahili that undercut the government’s theory that Djibo was the mastermind behind a ring that smuggled 100 kilos of heroin from Africa.

The government’s main evidence was the testimony of cooperating witness Stanley Walden, who struck a deal to testify against Djibo shortly after being stopped flying in to JFK with more than six kilos of low-grade heroin in a secret compartment in his suitcase. Walden protested that the drugs were not his, but belonged to Djibo and that he was just a courier. Text messages on his phone in English appeared to corroborate his claim, and the feds arrested Djibo as he boarded a flight to London a few weeks later.

The government handed over the English-language texts with Djibo, but nothing else from Walden’s phone, despite repeated requests many months before trial. Not relevant, said AUSA Karen Koniuszy. Texts on Djibo’s phone were suppressed because the border agents illegally searched it when he was stopped — but that’s another story.

Can Border Agents Search Your Cell Phone?

March 28, 2019 | by Zachary Margulis-Ohnuma

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Imagine you are met on the tarmac getting off a plane at JFK Terminal Two by armed customs officers. They tell you to come with them. They drive you to a secure area in Terminal Four, where foreigners are “processed” — i.e detained until they are admitted into the U.S. or sent to immigration custody. At Terminal Four, the officers do a normal customs search, then ask you to wait in a windowless room. Plainclothes investigators enter and tell you that they are going to search your cell phone and iPad. “No you are not,” you say. “I have a Fourth Amendment right to be free of unreasonable searches and seizures.” They respond that the “protection of the Fourth Amendment does not apply at the U.S. border.” They give you a “choice” — you can leave, but you have to leave your cell phone and iPad behind to be searched. Or you can give them your passcodes and, if they don’t find anything on your devices, you can be on your way. You give them the passcodes. They find pictures they believe are child pornography — they are not — and take you away in handcuffs.

Is this a “routine” border search, or something else? Have your Fourth and Fifth Amendment rights been violated?

Those are questions that principal attorney Zachary Margulis-Ohnuma will argue tomorrow before a panel of judges at the New York Supreme Court Appellate Division, Second Department. The ACLU and Electronic Frontier Foundation argued in an amicus brief that, under these circumstances, a warrant based on probable cause is required to search the devices. The state believes the search was proper because a federal agent had some vague notion that a house associated with a family member of the defendant was at some point in the past used to download child pornography. We’ll argue that more is needed to justify a search of electronic items at the border, just like a warrant was required to search a cell phone incident to arrest in the 2014 Supreme Court case Riley v. California. Moreover, under these circumstances the provision of the passcodes was not a voluntary act but was the product of coercion, and thus information derived from the passcodes cannot be used against the defendant under the Fifth Amendment.

Mandatory Minimum Sentences and Federal Child Pornography Charges

January 3, 2019 | by Zachary Margulis-Ohnuma

The U.S. Sentencing Commission kicked off the new year with a comprehensive report analyzing data from federal sex crime cases. The report, which runs 81 pages plus a 62-page appendix of charts and graphs, contains some eye-opening conclusions. The most significant for child pornography cases is this: even though there is “little meaningful distinction between the conduct involved in receipt and possession offenses,” average sentences for receipt are much longer than sentences for possession. The Sentencing Commission has been calling on Congress to “align” the penalties for receipt and possession of child pornography since 2011. The effect on sentencing of the different child pornography offenses is shown in the following chart:

The takeaway is something we clearly already knew: what you plead to matters. Average sentences for possession are lower than sentences for receipt — 26 months lower on average — even though the conduct is the same. Distribution convictions, which carry the same mandatory minimums as receipt, are much higher. Defendants and their attorneys must press prosecutors to permit them to plead to possession and not receipt or distribution. Even though receipt or distribution can be charged in the vast majority of cases, some prosecutors are open to pleas to possession, especially if the defense team can present mitigating circumstances.

The effect of statutory mandatory minimums is especially significant because the U.S. Sentencing Guidelines, which used to be binding on sentencing judges, are now merely advisory. As a result, judges increasingly impose below-Guidelines sentences in child pornography cases, which is illustrated in the following chart from the Commission’s report:

The Federal Criminal Justice Reform that Wasn’t

December 31, 2018 | by Zachary Margulis-Ohnuma

As of December 27, there were 180,429 prisoners in federal custody. Think about that a minute — about a fifth the population of San Francisco behind bars for interstate crimes. No one seriously thinks this many people should be housed, clothed, fed, and secured with federal tax dollars. (More than 2 million people are incarcerated in the U.S. when you include state and local facilities, way more than any other country in the world, including China, which has four times as many people and notoriously strict laws).

There are two reasons for the staggering number of federal inmates: over-criminalization and excessive sentences. In other words, too many things you can do can land you in federal prison: crimes like fishing in the wrong waters, or charging a health insurer for dental work performed by an unlicensed dentist. And when people are locked up for federal crimes, it is for too long, like when a teenage street-level drug dealer is held liable for the whole drug conspiracy that he is part of.

So what a breath of fresh air when the lame-duck Congress briefly came together at the end of 2018 to agree on federal criminal justice reform. Pres. Donald J. Trump signed the so-called “First Step Act” into law on December 21. The press crowed that Trump would “go down in history” and that the changes represented a “sweeping reform.” Probably none of them read the 148-page law, which will have no effect on the vast majority of people caught up in the federal criminal justice system. At a human level, the most important provision of the new law is that it bans the barbaric practice of using restraints on female inmates as they are giving birth. You read that correctly. Until recently the Bureau of Prisons routinely shackled women in the hospital, in labor, as though they might take the opportunity to escape as their baby was being born. It took Donald Trump and a voted-out-of-office Republican congress to finally make that illegal.

Spending Thanksgiving at Home

November 21, 2018 | by Zachary Margulis-Ohnuma

Alcatraz09-225x300 Our 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.

A Holistic Defense Leads to Less Time Locked Up

November 12, 2018 | by Zachary Margulis-Ohnuma

adults-business-connection-1181715-300x200 People 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.