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Articles Posted in Civil Rights Advocacy

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.

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.

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.

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?

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.

It should seem obvious, but some federal courts (a lot, actually) have missed the fact that intentional sexual touching of an inmate by a guard for the purpose of sexual gratification or humiliation violates the Eighth Amendment’s ban on cruel and unusual punishment. The Law Office of Zachary Margulis-Ohnuma and Perlmutter & McGuinness, P.C., pushed that idea in Crawford v. Cuomo, a lawsuit brought 2013 on behalf of two inmates at Eastern Correctional Facility. The inmates charged a guard with sexually abusing them by fondling their genitals during unnecessary searches. The plaintiffs also faulted prison administrators for tolerating the abuse despite repeated complaints from other inmates. The district court in Albany dismissed the case last year.

But, as reported in the Wall Street Journal and the New York Times, the Second Circuit Court of Appeals reinstated the lawsuit today. The court ruled that “no amount of gratuitous or sexually‐motivated fondling of an inmate’s genitals―even if limited in duration or conducted through the inmate’s clothes […]― is permitted by the Constitution.” In doing so, the appeals court clarified the law, holding that an old 1997 case would come out differently under today’s standards of decency. Most importantly, the court made clear that prisoners have a right to sue in federal court for sexual fondling. “The sexual abuse of prisoners,” the Court wrote, “once overlooked as a distasteful blight on the prison system, offends our most basic principles of just punishment.”

As a result of the decision, the victims of the abuse, who are both now on parole, will be permitted to pursue their case in federal court. Click here to read the whole opinion.

In a decision that “should be written with tears,” Judge Jack Weinstein has scheduled a remarkable hearing for August 3 to explore how to handle a gut-wrenching case of a child-abuse survivor who apparently went on to use and produce child pornography himself. Last month, 26-year-old Darnell Washington pled guilty to charges of possession of child pornography and sexual exploitation of a child, and now faces a mandatory 15-year minimum prison sentence. At Darnell’s arrest more than two years prior, he admitted to possessing, receiving, and distributing child pornography. At the plea allocution, however, Judge Weinstein adjourned the sentencing and raised two issues sua sponte: whether Darnell has the mental capacity to plead guilty and whether sentencing him to the mandatory minimum constitutes cruel and unusual punishment in violation of the Eighth Amendment. Darnell was raised by the state. At a young age, he exhibited symptoms of fetal exposure to illicit substances. He was apparently raped by multiple foster parents. His mental development was poor, resulting in a “truncated education.” Darnell viewed child pornography repeatedly as an adolescent. At 20 years old, he pled guilty to sexual abuse and endangering the welfare of a child, based on his admission that he gave three young boys wedgies and showed one of them child pornography. During his three year incarceration, he was raped by fellow inmates. After he was released, he was diagnosed with various mental disorders including Post-Traumatic Stress Disorder and depression. Keeping in mind Darnell’s background, the psychological evaluations, his courtroom demeanor, and the legal principles at issue, on June 25 Judge Weinstein ordered an evidentiary hearing to explore five issues: 1. why Darnell decided to plead guilty rather than go to trial on an insanity defense given that the mandatory minimum sentence for a conviction at trial is the same as for a guilty plea; 2. whether Darnell has the mental capacity to plead guilty and forfeit his right to trial; 3. whether sentencing Darnell under the statutory minimum sentence is a violation of the Eighth Amendment; 4. alternatives to the mandatory minimum sentence if there is an Eighth Amendment violation; and 5. the risks posed by Darnell if released back into society before or after mental health treatment. The hearing remains scheduled for August 3, at which point Judge Weinstein will also consider Darnell’s July 6 letter to the Court, submitted under seal, requesting to be sentenced forthwith.

Why do innocent people confess? Principal attorney Zachary Margulis-Ohnuma will join Prof. Saul Kassin and Ron Russo, Esq. for a lecture and discussion at the New York City Bar Association to explore the phenomenon of false confessions. Prof. Kassin is a leading social scientist who has written extensively on false confessions, helping form a consensus in the scientific community that false confessions do happen. Ron Russo is a prominent white collar attorney in New York City.

Zach Margulis-Ohnuma will discuss the case of People v. Antonio Yarbough and Sharrif Wilson, in which two teenage boys were induced into making two very different false confessions that led to their wrongful convictions. DNA conclusively proved the confessions false and both defendants were exonerated in 2014. The program will be at the New York City Bar Association on June 10, 2015 from 6 – 8:30 pm. Admission is free and CLE credit will be provided, but you must register in advance.

To the great relief of anyone who believes in the rule of law, Baltimore City State’s Attorney Marilyn Mosby — thirty-five years old and four months on the job — filed charges on Friday against six police officers who caused the death of Freddie Gray last month. The officers were arrested and released on bail later that day. The most serious charge, “depraved heart murder,” carries a 30-year penalty. All six were charged with assault. What happens next? How is this case proceeding differently from the police-caused deaths of Eric Garner in Staten Island and Michael Brown in Ferguson, Missouri and Mauricio Jaquez in the Bronx?

Unlike in the Garner and Brown cases, State’s Attorney Mosby treated the criminal conduct of the officers here like any other criminal case: she had them arrested as soon as she developed probable cause that they had committed crimes. She will still have to present the case to a grand jury for indictment and to a regular (“petit”) jury for convictions. Assuming the evidence is there, probable cause is enough for the grand jury. But to secure convictions, she will need proof beyond a reasonable doubt.

In the Garner and Brown cases, the prosecutors manipulated the system by pretending to let the grand juries decide for them; i.e. they made essentially phony factual presentations so that the grand juries would not return an indictment. They did not commit themselves to the prosecution as Ms. Mosby has done in the Baltimore case. They treated the cases against police specially; anyone else who choked someone in Staten Island or shot someone on the street in Ferguson would have been arrested and indicted later, like the cops in Baltimore.

In a series of quick orders, Judge Katherine Forrest of the Southern District of New York granted summary judgment this week to New York City police officers who shot Mauricio Jaquez at least five times, including in the back of the head, at his apartment in the Bronx. They said he came at them with a knife; the forensic evidence showed otherwise. The trial scheduled to begin on Monday has been adjourned. Judge Forrest has so far not explained her decisions except to say that the City of New York and the officers’ motion to exclude the plaintiffs’ medical expert was granted and the grant of summary judgment flowed from that.

The trial court’s decisions will be appealed to the Second Circuit which previously reversed Judge Forrest after she accused Mr. Jaquez’s widow of abandoning the case. The reason that time? The widow never got court mail that was sent to a homeless shelter where she and her three children were forced to live after her husband was shot and killed by the police.

This time, plaintiffs, represented by the Law Office of Zachary Margulis-Ohnuma, opposed the City’s last ditch effort at summary judgment (which ultimately succeeded in the district court). The forensic evidence and the defendants’ contradictory statements are both complex and compelling; here is how we summed them up:

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