Articles Posted in Civil Rights Advocacy

Under the Sex Offender Registration Act, registered sex offenders must tell New York State about all “internet accounts with internet access providers” and “internet identifiers that such offender uses.” Does that mean you have to disclose your social media accounts?

Most police and the the State Division of Criminal Justice Services would have said yes. Police agencies routinely scour the internet looking for sex offenders who are on social media but have not properly disclosed their presence. People always thought hiding a social media account was a felony — failure to register under Corrections Law Sec. 168-t.

Turns out it is not.

https://www.zmolaw.com/news/wp-content/uploads/2018/05/Screen-Shot-2018-05-09-at-10.26.52-AM-300x298.pngThe abrupt resignation of New York Attorney General Eric Schneiderman Monday night left the legal community scratching its head. How could such a bright star, who consistently used the power of his office to fight for just causes, especially for women, have fallen in such rapid and spectacular fashion?

The answer, of course, is that people are complicated.

Schneiderman’s initial response to the New Yorker’s story about four women accusing him of abuse was not encouraging: in a statement quoted in the article he asserted that he never assaulted anyone but admitted he engaged in “role-playing and other consensual sexual activity” in the “privacy of intimate relationships.”  In essence, he told the New Yorker he didn’t do it, but if he did do it, it was consensual.

Victoria-Medley-headshot-225x300New York City criminal defense and civil rights lawyer Victoria N. Medley, Esq. has joined the Law Office of Zachary Margulis-Ohnuma as an associate, expanding our reach, capacity and expertise in New York’s state and federal courts.  Ms. Medley comes to us from the firm of Perlmutter & McGuinness, P.C., which recently dissolved when leading criminal attorney Adam Perlmutter became a judge on the New York City Criminal Court. Our office continues to work with the newly-formed Law Offices of Daniel A. McGuinness, PC on high-impact civil rights cases. Ms. Medley was part of the team that won a $26 million settlement last year for two wrongfully convicted men.

Ms. Medley graduated from Brooklyn Law School in 2014, where she led the school’s local chapter of the American Civil Liberties Union. While still in law school, she interned with Gideon’s Promise, a non-profit that supports public defenders.  In that position, Ms. Medley second-chaired two trials and assisted in felony, magistrate, and family court matters.  After graduating, she completed a fellowship at the Legal Aid Society’s Criminal Appeals Bureau, where she represented indigent clients appealing their cases.

At the Law Office of Zachary Margulis-Ohnuma, Ms. Medley will focus on defending individuals accused of serious crimes including fraud, sex crimes, and computer crimes. She will also continue her work on behalf  victims of civil rights abuses, including prisoners who suffer sexual abuse and individuals injured by police misconduct. Her presence will allow us to expand our criminal and civil rights practices, providing zealous advocacy for individuals and ensuring that their rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments are secured and promoted.

https://www.zmolaw.com/news/wp-content/uploads/2018/01/Screen-Shot-2018-03-14-at-3.10.35-PM-300x228.jpgA year ago, Gov. Mario Cuomo granted clemency to our client Felipe Rodriguez, commuting his life sentence to the 27 years he had already served for a 1987 murder. Felipe, who is also represented by Nina Morrison of the Innocence Project, was released because he was an incredible inmate: he had renovated the rectory in one prison and replaced the plumbing in another; he brought Cardinal Dolan to pray with the men on Easter and recruited writers from among the inmates for a prison newsletter. He was so respected by prison authorities that he was put in charge of caustic chemicals at Eastern Correctional Facility.

Felipe Rodriguez is also innocent. He was wrongly convicted of murdering a young Brooklyn mother named Maureen Fernandez and leaving her body behind a warehouse in Queens. His conviction was based on two pieces of evidence: (1) testimony of a drunk who identified Felipe a year-and-a-half after the murder as someone he briefly saw in a bar with the victim the night she was killed and (2) testimony from Javier Ramos, a friend of Mr. Rodriguez who had admitted to falsely accusing someone else of the murder because he was afraid of the police. No physical evidence, DNA, fingerprints or other forensics of any kind ever linked Felipe to the crime.

As the Daily News reported on Christmas Eve: “The case against Felipe Rodriguez was, at first, a case of no’s. No witnesses. No motive. No connection between Rodriguez and Fernandez. No DNA evidence. No criminal record. No history of violence. No knife. No description of bloodstains on the clothing of the man presumed to be the killer.”

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.

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.

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.

 

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.

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.

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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