Articles Posted in Civil Rights Advocacy

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.

Thirteen years ago Nina Morrison, a staff attorney at the Innocence Project – the organization, founded by Barry Scheck and Peter Neufeld, that spawned the movement to use DNA to free the innocent in the United States – came across the case of Felipe Rodriguez.

Felipe was a Brooklyn construction worker and a new father in 1988, when police started investigating him for a murder in Queens the year before. He was arrested the following year and convicted after a trial in 1990.

But the case against Felipe had more holes than Swiss cheese.

“Motion Granted.” With those words, the Hon. Joseph Zayas of Queens Supreme Court vacated the murder conviction and dismissed the indictment against Felipe Rodriguez.

It was a triumphant end to a fight that has consumed our office since 2015 and the Innocence Project since 2007.

In all those years, Mr. Rodriguez was granted executive clemency by Gov. Andrew Cuomo based on his stellar prison record, got married, worked steadily at a hotel, helped raise two beautiful children, and was reunited with his adult son, who was just three when Felipe was wrongly convicted in 1990.

Guest column by William Dobbs, Esq. from The Dobbs Wire.

Is the sex offense registry growing or shrinking?https://www.zmolaw.com/news/wp-content/uploads/2019/10/Screen-Shot-2019-10-13-at-3.20.30-PM-300x232.png

Hard to tell because the long-time keeper of the national statistics, National Center for Missing and Exploited Children (NCMEC), has stopped updating the figures.

Twelve federal appeals courts have said that the FBI acted in good faith when they used a Virginia warrant to search thousands of computers around the world in the controversial Playpen child pornography case. Our office last week asked for a special hearing in the Second Circuit to challenge that conclusion, with a series of simple arguments that, somehow, the appeals courts keep missing – including a Second Circuit panel that ruled on the warrant last month.

Click here for a redacted version of our appellate brief and here for our Petition for Initial Hearing En Banc, an unusual request effectively required by the Second Circuit’s August ruling.

The logic is simple and the stakes are high.

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_3241-225x300EVWSG4FLI66A4VDF6ZCFQUHW2M-200x300Friends, 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.

Police in New York have been fighting to block the release of raw, unedited body-worn camera footage by claiming that the footage is a “personnel record” used for performance evaluations and therefore confidential under the Civil Rights Law. However, in a decision released last month, the First Department Appellate Division rejected this theory, which had been put forward by the Patrolmen’s Benevolent Association. In PBA v. DeBlasio, et al., the Appellate Division held that privacy interests of police officers do not transform the bodycam footage into “personnel records” and therefore the footage must generally be released under the Freedom of Information Law.

Screen-Shot-2019-03-13-at-10.37.10-AM-1-275x300.pngApril 2017 marked the beginning of the NYPD’s body-worn camera program, which outfitted 1,300 police officers across 20 precincts with body cameras. The stated purpose of the program was to document the public’s interaction with police and establish a clear record of those encounters, as well as to provide evidence in  civil or criminal proceedings. That purpose was quickly tested on September 6, 2017, when police responded to a report of a Bronx man acting erratically in his apartment. The police responded for a “wellness check” that escalated into a 15-minute standoff ending with the shooting and death of Miguel Richards at the hands of NYPD Officers, all of whom were equipped with body-worn cameras. Our office, along with the Law Offices of Daniel A. McGuinness, P.C., represents Mr. Richards’s family in a lawsuit against the City and the individual police officers.

The entire encounter was caught on tape.

https://www.zmolaw.com/news/wp-content/uploads/2019/02/Screen-Shot-2019-02-21-at-3.18.47-PM-231x300.pngTop New York State officials claimed that they cannot be sued for the sex abuse, cover-up, and retaliation against Yekatrina Pusepa, a female inmate at Bedford Hills Correctional Facility, at the hands of a prison guard. Last week, a federal judge said they were wrong.

In October 2017, our office, partnering with the Law Offices of Daniel A. McGuinness, P.C., filed a lawsuit alleging that prison officials created an environment that failed to protect Ms. Pusepa, and other female inmates, from the sexual advances of correction staff. Ms. Pusepa, who was 25 at the time, was repeatedly approached by Corrections Officer Ruben Illa. Illa’s advances were notorious in the prison and, the complaint alleges, prison staff knew what Illa was doing and did nothing to stop it, preferring to hold Ms. Pusepa out as bait to try to catch Illa in the act. On one occasion, Illa groped Ms. Pusepa in her cell while two inmates held up a curtain to block the view. On another, he tried to have sex with her in a supply closet, but got scared off. On December 2, 2015, Illa called Ms. Pusepa out to the prison’s medical clinic for no apparent reason, then wrote her up for being out of place. After resigning from the prison, he pled guilty to filing a false report. He denies the sexual contact.

But Ms. Pusepa’s ordeal did not end with the sex abuse. When she refused to cooperate with a Department of Corrections investigation, she was thrown into solitary confinement on trumped-up charges, purposely left alone with a notoriously violent inmate, and verbally threatened and harassed by prison staff, the suit alleges. According to the lawsuit, top officials including Anthony Annucci, Acting Commissioner of DOCCS, Jason Effman, Associate Commissioner and PREA (Prison Rape Elimination Act) Coordinator for DOCCS, and Sabina Kaplan, the Superintendent at Bedford Hills were responsible for what happened to Ms. Pusepa because they were deliberately indifferent to the danger she faced from the guard who assaulted her.

32152929167_ec5898bebd_k-300x214Senate Bill S2440, the New York Child Victims Act, was signed into law by Gov. Andrew M. Cuomo on Thursday. The new law, which has been a goal of victims’ rights advocates for years, extends the statute of limitations for child sex abuse victims to file civil lawsuits, reviving old claims that, until yesterday, were time-barred. It also gives prosecutors more time to bring criminal charges going forward.

Survivors have a year from yesterday to bring civil claims for childhood sexual abuse that were previously barred by a statue of limitations. People who now wish to seek civil damages against their abusers can file a lawsuit, no matter how long ago the conduct occurred, as long as the suit is filed within the next 364 days.

If you were sexually assaulted as a child in New York and might be  interested in seeking damages against the abuser, you should consult an attorney as soon as possible to discuss your options. This second chance to hold your abuser accountable goes away soon. This blog post is not legal advice and only a qualified attorney can advise you about how the new law applies to your particular circumstances.

1024px-EAS_Hall_SIT-300x200Starting this month, I have been teaching an innovative new class about computer crime and high-tech government surveillance at the Stevens Institute of Technology in Hoboken. The course covers legal developments over the last two decades that have shaped how the government investigates computer crimes, such as computer hacking and the distribution of child pornography, as well as conventional crimes like drug trafficking and fraud that have become more efficient by using new information technologies. The course syllabus can be found here.

The topics we will cover come directly from our hands-on work for clients at the Law Office of Zachary Margulis-Ohnuma over the past couple of years. They include:

  • border agents’ authority to search computer devices at the United States border without a search warrant or suspicion,
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