Crime and Technology

By Zachary Margulis-Ohnuma Twenty one years, seven months and nineteen days after Tony Yarbough and Sharrif Wilson were taken into custody for a brutal triple homicide, they walked out of a Brooklyn courtroom today, cleared of the murders of Tony’s family. Justice Raymond Guzman granted our unopposed motion to vacate the verdicts under Criminal Procedure …

By Zachary Margulis-Ohnuma On June 18, 1992, 18-year-old Tony Yarbough came home to find his family murdered. Through a series of systemic failures, he was wrongly convicted of this horrible crime. The real murderer, according to DNA evidence, went on to kill again seven years later. He has never been caught. A polygraph of Tony’s only accuser, …

By Zachary Margulis-Ohnuma It is now easy to find out population, race, gender and other statistics for the Bureau of Prisons at a glance by visiting BOP’s new “By the Numbers” webpage. The page also provides a snapshot of what federal crimes inmates are incarcerated for.  There are no big surprises there: drug offenses make …

By Zachary Margulis-Ohnuma Please see our updated page about the case of Antonio Yarbough, falsely imprisoned for 22 years for the murders of his family. The medical examiner’s DNA report is in, the Daily News has called for his release and his co-defendant — the only real witness against him — passed a lie detector …

By Zachary Margulis-Ohnuma A video from the Association of Federal Defense Lawyers in which Zach Margulis-Ohnuma and two other attorneys, Sean Nuttall of Morvillo Abramowitz and Trisha LaFache, discuss interesting Second Circuit cases is now available. Zach talks about three cases: the first is U.S. v. Reingold, in which the circuit overturned a decision by …

By Zachary Margulis-Ohnuma For centuries, confessions have been considered a reliable form of proof against the accused — who would confess to a crime they did not commit? But DNA evidence has begun to demonstrate that false confessions in the United States are more common than previously believed. One reason is that the courts have …

By Zachary Margulis-Ohnuma People convicted of non-violent federal drug crimes face staggering penalties in the form of “bone-crushing” mandatory minimums and draconian federal sentencing guidelines. But the U.S. Sentencing Commission just announced that it has voted to accept comments on a proposed amendment to the drug guidelines that would lower them by two levels across …

By Zachary Margulis-Ohnuma Ryan Ferguson was released yesterday after spending ten years in a Missouri prison based on false testimony by two witnesses. No physical evidence tied him to the murder. One of the witnesses claimed to be his accomplice in the murder, and recanted in a videotaped statement in 2005. Witness statements and testimony …

By Zachary Margulis-Ohnuma Please check out the Free Tony Yarbough page which has been updated with new information about the case, the DNA results, the related murder of Migdalia Ruiz in Sunset Park in 1999, and documents not previously available. Tony and Sharrif will be in court in Brooklyn on Monday, October 7, 2013.  Please …

By Zachary Margulis-Ohnuma Does the federal mail fraud statute criminalize cheating on a state driving test, where the “mailing” is incidental to the cheating and a state law specifically addresses cheating on a DMV test? No, writes Judge Glasser of the U.S. District Court for the Eastern District of New York. In United States v. …

By Zachary Margulis-Ohnuma Shooting back at the Second Circuit, Judge Jack B. Weinstein of the Eastern District of New York writes passionately and eloquently that enforcing the five-year mandatory minimum sentence for distribution of child pornography over file-sharing programs like Gigatribe is an unnecessary cruelty. The Court of Appeals yesterday overturned Judge Weinstein’s below-minimum sentence …

By Zachary Margulis-Ohnuma Tony Yarbough is waiting to be freed.  DNA evidence revealed in Brooklyn Supreme Court last week shows that an unknown third person murdered Antonio Yarbough’s family, as reported in the New York Daily News today. The evidence comes in the form of a “hit report” issued by the Office of the Chief …

By Zachary Margulis-Ohnuma After being arrested with a negligible amount of marijuana, police suspected fidgety Felix Booker was hiding something more. Police transported Booker to a hospital where he was medicinally paralyzed and intubated against his will for eight minutes while the physician performed a cavity search without his consent. They turned up a five …

By Zachary Margulis-Ohnuma Attorney General Eric Holder has issued a new memorandum to all federal prosecutors regarding mandatory minimum sentences in narcotics cases. Mandatory minimums are triggered by drug type and quantity — for example, distribution of 28 grams of crack cocaine equals a mandatory minimum of five years in prison. There are currently two …

By Zachary Margulis-Ohnuma We advocate for just sentences for our clients convicted of crimes. One way sentences can be unfair in the federal system is that they can be based on provisions in the United States Sentencing Guidelines which are themselves fundamentally flawed because they were promulgated without regard to national experience or empirical data. …

By Zachary Margulis-Ohnuma In a letter responding to the U.S. Sentencing Commission’s call for comments on its priorities for the upcoming year, Mark Allenbaugh, the chair of the Sentencing Committee of the National Association of Criminal Defense Lawyers, urged the Commission to focus on the guidelines covering fraud and child pornography, two crimes that are …

By Zachary Margulis-Ohnuma Back when the federal Sentencing Guidelines were mandatory, there was broad agreement that an increase in a guideline after the completion of a crime could not be applied without violating the Constitution’s Ex Post Facto Clause, which protects against such after-the-fact increases in punishment. But since 2005, the government has been arguing …

By Zachary Margulis-Ohnuma The immigration service has confirmed that former client Idriss Abdelrahman is on his way to Mali after three-and-a-half years in American prisons.  Mr. Abdelrahman, a Songhai tribesman from the war-torn region of Gao, was tragically removed from his family, lured to Ghana with promises of riches, detained by Ghanaian law enforcement and …

By Zachary Margulis-Ohnuma The Supreme Court has ruled that Maryland’s policy of swabbing arrestees for DNA is a search, but a reasonable, constitutional search, even without individualized suspicion.  That means anyone arrested for a “serious crime” can be swabbed and the DNA results used against him or her in any old case where DNA was …

By Zachary Margulis-Ohnuma Under New York’s Sex Offender Registration Act, a judge determines risk.  That’s a good thing, because it ensures that the defendant (i.e. convicted sex offender) has an opportunity to be heard.  But the current system is a mess, with an outdated “risk assessment instrument” (“RAI”) that routinely and predictably yields the wrong …

By Zachary Margulis-Ohnuma Pretty much every defendant arrested by the feds — the Drug Enforcement Administration, the Department of Homeland Security or the FBI — is subjected to a cheek swab.  The agents politely and painlessly take a little DNA from your cheek with a q-tip as you are being fingerprinted, photographed and “processed.”  You …

By Zachary Margulis-Ohnuma Attorneys Adam Perlmutter and Zachary Margulis-Ohnuma have filed a complaint in Federal court in Albany alleging a pervasive pattern of sexual abuse by a prison guard.  According to the complaint, Corrections Officer Simon Prindle routinely sexually abused inmates by fondling their genitals during unnecessary searches at the facility, located in Napanoch, New …

By Zachary Margulis-Ohnuma There was a fascinating report in the New York Times today about delays in the state courts in the Bronx, and a particular lawyer who — according to the Times — uses the delays to his clients’ advantage.  This is a very, very different approach from the one we take in federal …

By Zachary Margulis-Ohnuma According to the New York Times, a lawsuit over unpaid legal bills has given rise to a counterclaim for massive overbilling by one of the world’s largest law firms. Emails disclosed in discovery make the practice sound not only routine, but suggest it was the firm’s policy. As a lawyer put it …

By Zachary Margulis-Ohnuma According to online news outlet Main Justice, the Southern District’s Judge Jed Rakoff came out with a “modest proposal” to scrap the U.S. Sentencing Guidelines governing fraud and other financial crimes “in their entirety.”  The plainspoken senior judge, who has presided over many high-profile white-collar criminal cases, told a group of white-collar …

By Zachary Margulis-Ohnuma The United States Sentencing Commission has finally released its long-awaited report on child pornography.  At upwards of 400 pages full of facts, figures, charts, graphs and statistics, it is an overwhelming document that comprehensively surveys the issues that arise in child pornography cases.  It contains detailed recommendations relating to adjusting — not …