Articles Posted in Civil Rights Advocacy

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.

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.

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