Articles Posted in Civil Rights Advocacy

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https://www.zmolaw.com/news/wp-content/uploads/2017/10/Screen-Shot-2017-10-17-at-11.20.45-PM-300x127.pngWhen officials at Bedford Hills Correctional Facility found out our client, Yekatrina Pusepa, was in an illicit relationship with a prison guard they did nothing to protect her. Instead, they held her out as bait. And when she would not cooperate with them, they threw her in solitary confinement based on trumped up charges. While in solitary, she was left alone with a notoriously violent inmate who had threatened her before — and was able to brutally attack her because of official indifference. Those are the charges in a new lawsuit brought by the Law Office of Zachary Margulis-Ohnuma and Perlmutter & McGuinness, P.C. in federal court in Manhattan.

The suit is one of at least three pending suits against the New York prison system based on what is alleged to be routine abuse and inadequate protection of women prisoners. In Pusepa’s case, the lawsuit alleges that prison officials bungled their investigation, which ultimately led to minor criminal charges lodged against her assailant, former C.O. Ruben Illa, by re-victimizing Ms. Pusepa at every turn. An official told Pusepa that the prison was aware that she was in a relationship with Illa. Under New York law, inmates are not legally capable of consenting to sexual contact with corrections officers, and therefore all sexual contact between inmates and officers is considered non-consensual. Such contact therefore violates the Eighth Amendment. But, according to the suit, the prison continued to allow Illa to work with Pusepa, even letting him swap shifts with another guard so that he could spend more time with her.

The other lawsuit, also brought by the Margulis-Ohnuma and Perlmutter & McGuinness firms, attempts to hold prison officials responsible for forcible sexual abuse by another guard at Bedford Hills, who was prosecuted for forcibly touching our client.

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Our client Felipe Rodriguez is about to go home after almost 27 years in prison.

Felipe needs clothes, food, a job, and a place to live. We are working (with the Innocence Project) on all that, but you can help. The Innocence Project has set up a GoFundMe page to collect cash donations, which will be forwarded to Felipe upon his release to help him to get started with his new life. He also needs men’s clothes — shoe size is 9.5, pants are 36W and 31.5L. To donate, go to https://www.gofundme.com/felipereentryfund.

As you may already know, Felipe was granted clemency at the very end of last year based on a petition submitted by the Law Office of Zachary Margulis-Ohnuma and the Innocence Project. Felipe was an amazing inmate: he published a newsletter, renovated a rectory, re-built an institution’s  plumbing system, handled dangerous chemicals, and befriended some of the most hated criminals in the prison system. We also believe that he is innocent of the crime he was convicted of, the stabbing murder of a young mother in Queens in 1987. There was no connection between Felipe and the victim; the main witness against him had made an identical accusation against another individual and — unbeknownst to the jury — was caught on tape saying he had made it all up.

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In the best spirit of the holiday season, Governor Cuomo announced today that he granted executive clemency to Felipe Rodriguez based on a petition filed by the Law Office of Zachary Margulis-Ohnuma and the Innocence Project. Felipe is a remarkable client. The end to his incarceration brings joy not only to his lawyers — Nina Morrison of the Innocence Project and Zachary Margulis-Ohnuma — but also to the many people he has touched in and out of prison. What makes the commutation even more remarkable is that he was convicted of an incredibly heinous crime: the stabbing murder of a young mother, whose body was found dumped in a parking lot in Queens in 1987. But the trial evidence was weak. The Innocence Project has been fighting to prove Felipe’s innocence for years. Last year, IP brought in the Law Office of Zachary Margulis-Ohnuma to continue and expand the investigation. In short, the only real accuser at trial claimed that Felipe borrowed his car to commit the murder, but had previously accused someone else of the exact same crime, then turned on Felipe instead after pressure from the police. In the meantime, the accuser was caught on tape saying his car could not have been used in the crime in any event. The jury never heard (or learned about) the tape.

Felipe’s prison record is extraordinary. As described by Governor Cuomo’s office: “While incarcerated, Rodriguez has excelled as a devoted leader of the Catholic faith, leading worship and bible study groups as well as contributing to facility Catholic newsletters.” Felipe arranged for a visit to the prison from Cardinal Timothy Dolan, the Archbishop of New York. He counseled the notorious upstate New York serial killer, Artie Shawcross, to repent before his death in 2008. As the governor noted, while in prison Felipe studied “masonry, television and radio repair, and barbering, as well as HIV/AIDS counseling, receiving marks of high praise from his instructors in all courses.” The petition filed for Felipe also highlighted his skills as a carpenter and handyman: it was noted that he was trusted with caustic chemicals, renovated the rectory in one prison, and revamped the plumbing system in another. His prison record is devoid of violence. Efforts to fully exonerate Felipe Rodriguez will continue as he and his family savor his freedom.

For a profile of Felipe Rodriguez and his son on Channel 7 Eyewitness News, click here.

 

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For about two weeks last year, the FBI took over a website called the Play Pen that hosted and made available huge amounts of child pornography. It delivered illegal porn to as many as 100,000 computers around the world, along with malware – the so-called “NIT,” or Network Investigative Technique – that secretly infected the machines. The malware was used to send back identifying information to the FBI. About 190 people were searched, arrested and prosecuted based on this technique. And it was all supposedly authorized by a warrant issued by a federal magistrate judge in Virginia.

But, as it turns out, the warrant was no good. Or at least some courts have so held. Yesterday, the latest opinion from the Southern District of Iowa, agreed with decisions in Oklahoma and Massachusetts finding that the Virginia magistrate did not have the power to authorize searches of computers outside Virginia. The FBI had no right to rely on a bad warrant: “a warrant issued without proper jurisdiction is void ab initio and any search conducted pursuant to such warrant is the equivalent of a warrantless search.” The evidence against the defendant was suppressed and, if the decision is upheld, the case will likely be dismissed. Although other decisions have found that the Virginia NIT warrant was valid, a proposal is pending to change Rule 41 of the Federal Rules of Criminal Procedure to extend the power of federal magistrate judges to issue out-of-state warrants. While that may empower every magistrate judge in the country to allow your computer to be infected with malware, the 190 or so defendants arrested under current law will still have to slug it out in court to avoid harsh child pornography penalties.

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A judge in Syracuse earlier this summer ruled that a defendant charged with a federal sex crime should be acquitted because even though the defendant went to meet the phony “minor” (an undercover state trooper) at a mall, there was not enough evidence to show that he intended to try to have illegal sexual contact with the minor.

Michael Mahannah was charged with the sex offense after an investigator posed as a twelve-year-old boy and began sending him enticing text messages. The investigator pretended to be an underage boy named “Brett,” and started talking about sex. He continued the conversation for six hours even after Mahannah indicated that he wasn’t interested. The defendant agreed to meet only after “Brett” asked about oral sex a half-dozen times.

Mahannah told police that he was not planning to have sex with the boy, but would have told him in person that he should not solicit sex and that doing so is dangerous — not a defense that usually has much traction. Police unsurprisingly did not buy it: they arrested Mahannah and charged him with attempted coercion and enticement of a minor, a federal sex crime that carries a ten year mandatory minimum sentence.

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Finding a possibility that the sentencing judge had a “clearly erroneous understanding of the facts,” the Second Circuit Court of Appeals last week sent back a sixty-year child pornography sentence for another look by the district court. In United States v. Brown, the defendant had pled guilty to three counts of producing and two counts of possessing child pornography under 18 U.S.C. § 2251(a) and § 2252A(a)(5)(B). The trial court sentenced him to sixty years: effectively a life sentence.

In sending the case back to the sentencing court, Judge Rosemary Pooler noted the difference between producing child pornography and other, more serious crimes such as torture and murder.  As the Supreme Court has said, there is a categorical difference between defendants who “kill, intend to kill, or foresee that life will be taken” and those who harm others without causing or intending death. “This is because life is over for the victim of the murderer, but for the victim of even a very serious non-homicide crime, life is not over and normally is not beyond repair. Although an offense like robbery or rape is a serious crime deserving serious punishment, those crimes differ from homicide crimes in a moral sense.”

The circuit court also reasoned that an effective life sentence for a non-homicide offender could “frustrate the goal of marginal deterrence.” Prison sentences should, the court reasoned, be imposed as a way to deter individuals from re-committing the same crime.  In fact, defendants in child porn cases are generally less likely to re-offend as they get older. Finally, because the defendant would be subject to a lifetime term of supervised release and be required to register as a sex offender, there is an even lesser chance of him re-offending. The case was sent back to the district court for re-sentencing.

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Seven years ago next Tuesday, NYPD police officers shot and killed Mauricio Jaquez in his Bronx apartment. They claimed he was holding a knife. Last week, a civil jury came back finding that the last shot was reasonable, even though it was fired into the back of Mauricio’s head after he had been hit four times already. During the trial, the headlines favored Mr. Jaquez’s side of the story: Cop testifies that man he fatally shot wasn’t an imminent threat and I called 911 for cop-shot hubby, not because I was scared: wife, and strongest-of-all Victoria Bekiempis’s Daily News headline: NYPD cop crossed line with fifth bullet shot at mentally deranged man: lawyer. The evidence came in pretty much as expected. So what happened?

To begin, criminal defense lawyers know that when there is a colorable claim of self-defense in a homicide case, the defendant stands a good chance at acquittal. The prosecution’s most important witness is unable to testify. Juries tend to be sympathetic to arguments that the victim was the initial aggressor, especially when the victim is not there to give his side of it. If someone is coming at you with a knife, you very well might get away with shooting him to terminate the threat.

But this was not a civil case. As plaintiff, all we had to prove was that it was more likely than not that the sergeant used unreasonable force when he shot Mauricio Jaquez for the last time. The jury found that we had not proven that, even with the sergeant’s own admission that there was no threat at the time of that last shot. The jurors also found that the sergeant had proved (by a preponderance of the evidence too) that Mauricio was pushing up from the floor with a knife in his hand at the time of the last shot. According to the judge, that may have given him immunity from suit even if the jury found the last shot was reasonable.

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On April 12, 2009, New York City police officers shot and killed Mauricio Jaquez, an emotionally disturbed man, in his apartment in the Bronx. On Monday, seven years later, one of the officers, Sgt. William Flores, will stand trial before a Southern District of New York jury for depriving Mr. Jaquez of his civil rights in connection with one of the shots fired. The bullet entered the back of Mr. Jaquez’s head. The case will be tried by Zachary Margulis-Ohnuma and Sharlene Morris of the Law Office of Zachary Margulis-Ohnuma on behalf of Mr. Jaquez’s estate. Mr. Margulis-Ohnuma and Ms. Morris also represent Mr. Jaquez’s widow, Ana Martinez, and their three children, who were present just before he was killed and plan to appeal a ruling dismissing their wrongful death claim. The officers are expected to claim that Mr. Jaquez was threatening them with a fillet knife that was found at the scene. Although six shots were fired, the court has granted qualified immunity with respect to the first five shots and so the evidence will focus on whether the final shot was a reasonable use of deadly force.

Jury selection begins Monday morning, April 4, 2016, before the Hon. Katherine B. Forrest in courtroom 26A at 500 Pearl Street, New York, NY 10007. Opening statements are expected late morning or right after lunch. The victim’s daughter, who was 11 at the time of the incident, will testify in the afternoon.

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On June 18, 1992, five New York City detectives forced Sharrif Wilson, 15, to “confess” to a crime he did not commit, leading to his wrongful conviction in a gruesome triple homicide. The same detectives also got Antonio Yarbough to sign a false statement they wrote out for him.

To get the boys to confess, the detectives screamed at them, lied to them, drew a gun, threw a chair across the room, subjected them to hours of interrogation and slapped them around. To make the phony confessions seem real, the cops fed Tony and Sharrif details from the crime scene, forced Tony to make fake “corrections” on a written document, and had Sharrif tape a phony video recording with an assistant district attorney. According to a federal lawsuit, the cops tried to cover up the coercion by lying to prosecutors and committing perjury over and over again.

Despite the coverup, the detectives were found out — but only after Antonio and Sharrif spent nearly 22 years behind bars for a crime they did not commit and the real killer went on to commit another murder in 1999, which was linked by DNA evidence. Antonio and Sharrif are suing. And a key question arising in the lawsuit is this: was what those five detectives did on June 18, 1992 part of a custom and policy of the New York City police department, or were they just a few bad apples?

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As a law firm advocating for people accused or convicted of sex offenses, we focus on how sex offender registration sweeps in too many people and labels them as far higher risks than they actually are. The biggest problem with landing on a sex offender registry is the stigma associated with being blacklisted on a state-sponsored website chock full of personal (and often erroneous) information. But there are many other attacks on sex offenders, including limitations on where they can work and live. These restrictions are pointless and counter-productive, leading to ghettos of concentrated sex offenders in some extreme cases and preventing rehabilitation and reintegration into society in almost every case. In a welcome and overdue editorial, the New York Times has come out in agreement, arguing that local residency restrictions are pointless and lauding courts that have struck them down. Most of these laws have been overruled on technicalities — not because they are fundamentally unfair (which they are) but because they infringe on the state’s legislative authority.  The entire system needs to be revamped so that it applies only to violent offenders who pose a true threat, not to the thousands of people convicted of minor crimes, then prevented from re-entering society and haunted for life by the consequences. But recognition by the likes to the Times that residency restrictions are a real problem is a great early step.