The Law of Zachary Margulis-Ohnuma and Law Offices of Daniel McGuinness filed an Amended Complaint in federal court today detailing harrowing allegations of severe, pervasive, routine, and tolerated sexual abuse by prison guards against six women. According to the allegations in the complaint, women have been raped by guards all over the state — from Lakeview Shock Incarceration Center near Lake Erie, to Taconic Correctional Facility just north of New York City.

Prison rape by male officers is so common, so poorly investigated, and so tolerated, that a culture of sexual abuse exists in the state prisons. The new complaint explains:

From 2015 to 2019, the Department of Corrections and Community Supervision (“DOCCS”) housed approximately 2,500 female inmates, around five percent of the total inmate population, in six facilities throughout the state. These women were guarded by male officers, who routinely engaged in illegal sexual activity with individual victim inmates over long periods of time. Under the New York Penal Law, an inmate can never consent to sexual activity with an officer. See N.Y. Penal Law § 130.05. Nonetheless, DOCCS supervisors cultivated a culture that allowed male staff to prey on female inmates to satisfy their sexual desires. Male staff were barely supervised and left alone with women under their control for long periods of time in unmonitored areas of the prisons. They had a system of warning each other if a supervisor was approaching and created a climate of fear and intimidation against any woman who complained about sexual attention from an officer.

We are pleased to announce that the governor of New York has granted a sentence commutation to our client, Teara Fatico, reducing her sentence in connection with a 2011 burglary by two years. She will be eligible for release on parole in January 2021.

Ms. Fatico had cooperated with the Niagara County District Attorney’s Office to prosecute her then-boyfriend, who was the mastermind of the crime. Even though she testified in the case, her sentence was still originally set at 13 years following a guilty plea for attempted burglary in the first degree.

The victim of the robbery died during its commission, although Ms. Fatico was not present at the time. Gov. Cuomo announced the move along with two other clemencies in a press release issued earlier today. The announcement was immediately criticized by the National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums as insufficient. FAMM and NACDL sponsor a clemency project that has partnered with more than 200 lawyers from 60 firms to present clemency petitions to the New York governor. NACDL/FAMM has submitted 120 petitions to Gov. Cuomo, but only two have been granted thus far, one of them today.

Amid calls to abolish the police — which would likely make most of us safer in most situations — the New York State legislature has enacted a welcome reform: on Friday, the measure to repeal Civil Rights Law 50-a was signed into law. That means cowardly cops can no longer hide behind this phony privacy law to keep people from finding out about discipline against them.

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This officer appears to be advising his fellow officers to turn off their body-worn cameras in the aftermath of shooting Miguel Richards. Miguel was still alive at the time. The repeal of Civil Rights Law 50-a should make the officer’s disciplinary history available to the public.

Groups like the Innocence Project and the New York City Bar Association have been pushing for the law’s repeal for at least eight years. In recent weeks, they were joined by the families of victims of police violence. Hats off to the legislature for bringing about this important and politically fraught reform (up next: break the police unions).

For Immediate Release

New York, NY June 3, 2020 – Miguel Richards was shot and killed by New York City police wearing body cameras on September 6, 2017. But the NYPD edited the video footage to mislead the public about what really happened, according to lawyers for the Richards family.

Now Richards’s parents are calling on the state legislature to repeal the law that let the police deceive the public for almost two years after their son was senselessly shot down during a “wellness check.” Measures to reform the law are pending. Gov. Cuomo said on Saturday that he would support them.

Every decent human being in America who saw the expression on Minneapolis Police Officer Derek Chauvin’s face as he caused the death of George Floyd recoiled in horror.

The Hennepin County District Attorney’s Office-at least so far-has not concluded that Chauvin intended to kill Floyd, just that he acted with a “depraved mind” and without regard to human life. He faces up to twenty-five years in prison. Read the criminal complaint here.

Police Officer Derek Chauvin Killing George Floyd
The fate of the other officers who stood by for nearly nine minutes, keeping a concerned crowd at bay, is still uncertain.

We are delighted to announce that Benjamin Notterman has joined the Law Office of Zachary Margulis-Ohnuma as an associate attorney. Mr. Notterman comes to us from the New York University Center on the Administration of Criminal Law, where he was a research fellow investigating executive clemency under the direction of Prof. Rachel Barkow. As an associate at our firm, he will focus on wrongful convictions, civil rights, victims’ rights, and sex crimes.

Mr.  Notterman is an experienced civil litigator. He graduated from NYU School of Law in 2014 and went to work at Jones Day, a large international law firm. At Jones Day, he assisted with large-scale discovery and produced briefs on dispositive motions in state and federal courts. He then clerked for two years for  federal district judge William J. Martini in the District of New Jersey. He has also researched legal issues to support impact litigation in the areas of housing, public benefits, and prisoners rights for the Legal Aid Society. He got his start in clemency by drafting a petition for a death row inmate for the Center for Death Penalty Litigation in Durham, North Carolina while he was still in law school.

Mr. Notterman is the author with University of Buffalo Law School Prof. Guyora Binder of “Penal Incapacitation: A Situationist Critique” which was published in the prestigious American Criminal Law Revier in December 2016. He has also been published in the Huffington Post and the NYU Review of Law and Social Change.

New York City is home to it’s own archipelago of three federal jails, three borough jails, eight functioning jails on Rikers Island, two locked prison wards, and lockup facilities in each of seven state and federal criminal courthouses in the five boroughs. The best estimate is that there are upwards of 10,000 men and women incarcerated in the City of New York on any given day. Other than the court facilities, these jails are on lockdown: no visits, limited movement within the facilities. Inmates are cut off from their families, their lawyers, social workers, work and educational programs, and everything else that provides hope in a dark time.

And they are starting to get sick.

As the New York City Bar Association and many other groups have said, it is time to let people out. Our nation’s four-decade experiment with mass incarceration has failed. The only way to make the jails safe is to dramatically reduce the density. Public health and public safety require it. Many more people will die if the jails remain full.

I often say that our clients come to us on the worst day of their lives, the day they are arrested, or learned that a loved one was arrested and may be separated from them for a very long time. As the world faces a health crisis whose proportions remain unknown, the distress of being a criminal defendant is harder than it ever was. Jails and prisons are even more dangerous than usual and even a short period of confinement could be deadly. In the face of this, we are here to help.

But it is not business as usual. The courts are on very limited operations. Most of our appearances have been adjourned. An oral argument scheduled for tomorrow at the Second Circuit will be conducted via teleconference. Some police departments have wisely slowed the rate of arrests to avoid placing potentially infected people in detention facilities that have so far been spared. Once the virus enters a jail or prison, it seems almost certain everyone inside will get it and the vulnerable will die. If you have a loved one who is incarcerated, circumstances have changed and you must continue to advocate for their release.

Unfortunately, our main adversaries, the wise men and women at the United States Attorney’s office for the Southern District of New York, have not yet come to understand that simple humanity demands that some long-term investigations wait until this crisis is over. The Federal Defenders of New York, who oversee federal indigent defense in New York City, have provided unparalleled leadership, pressing for legal access to inmates and for an end to non-emergency new arrests, but with little response so far. Click here for the Federal Defender’s letter to the courts and U.S. Attorneys.

Not that anyone would want to ride the subways right now, but the New York City Bar Association has come out in strong opposition to a proposal that would permit the MTA to ban people from trains and buses in New York based on little more than accusations relating to sex offenses. The ban is complicated and unwieldy — it would probably require some form of highly intrusive facial recognition technology to enforce; its provisions are discussed in detail in this new report from the City Bar. Principal attorney Zachary Margulis-Ohnuma chaired the Working Group that put together the report. The City Bar is an association of about 24,000 lawyers from around the world, including both criminal defense lawyers and prosecutors.

photography-of-people-at-train-station-1311544-300x200Bottom line is that the ban is currently included in Gov. Cuomo’s annual state budget, which means passage is practically automatic unless lawmakers step up to take it out, as the City Bar urges them to do. It will create a new enforcement scheme giving the MTA discretion to ban any person adjudicated as a Level Three sex offender as well as anyone who receives three tickets from the MTA relating to sexual conduct or assault, even if they ultimately beat the tickets. Just who in the MTA will exercise this discretion is mysterious. One reason the City Bar opposes the ban is it appears to violate due process by failing to give adequate notice and an opportunity to be heard. It is also excessively punitive to the point where it will actually undermine public safety by preventing people from working, going to school, and visiting friends and family — all activities that tend to prevent criminal recidivism. The ban undermines one of America’s dearest freedoms, the freedom to travel. It will be ripe for constitutional challenge from the outset. A similar ban proposed last year was voted down amid vocal opposition from criminal defense groups.

Charges of sexual offenses are incredibly serious and have consequences that affect people for the rest of their lives. The subway ban appears to be just one more attempt to pile punishment on a group with zero political clout. The City Bar’s efforts to speak for them, and for others affected by the misguided ban, should be a welcome part of the debate.

Have a look at David Leonhardt’s recent NY Times newsletter, which posits that executive clemency is a critical component of our current criminal justice system. The newsletter came in the wake of scathing criticism of Pres. Trump’s use of clemency to help his political friends.

Approximately two million Americans are  behind bars, giving the United States one of the highest incarceration rates in the world. High rates of imprisonment are due to extraordinarily long sentences, even for nonviolent crimes; arbitrary systems of parole; and wrongful convictions. Clemency can help.

Leonhardt cites as a prime example of the positive power of clemency one of our cases, that of Felipe Rodriguez. Felipe was freed in January 2017 after we teamed up with the Innocence Project to petition Gov. Andrew Cuomo for his release via a commutation of his sentence (clemency comes in two flavors: a pardon erases the conviction as though it never happened; a commutation reduces the person’s sentence). Felipe always maintained his innocence and the governor freed him in part because of serious questions about the integrity of his conviction, and in part because of his phenomenal prison record, which included construction projects, editing a newsletter, and counseling serial killers.

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