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 …
Sex Crimes
Do You Still Have to Tell What You Know? The New Holder Memorandum on Mandatory Minimums
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 …
Deconstructing the Federal Fraud Guidelines
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. …
NACDL Asks U.S. Sentencing Commission to Focus on Fraud, Child Porn Guidelines
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 …
The Supreme Court Rules on Ex Post Facto and the Federal Sentencing Guidelines
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 …
Idriss Abdelrahman, Falsely Accused of Supporting Al Qaeda, Returns to Mali
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 …
Supreme Court Approves Cheek Swabs
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 …
Should Sex Offender Registration Risk Level Determinations be Scientifically Validated?
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 …
Cheek Swabs
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 …
Attorneys Margulis-Ohnuma and Perlmutter Sue State Officials for Allegedly Tolerating Sex Abuse in Prison
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 …
Justice Delayed in the Bronx?
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 …
Big Firm Lawyers Joke About Overbilling Clients
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 …
Scrap the Sentencing Guidelines?
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 …
The Sentencing Commission Reports on Federal Child Pornography Offenses
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 …
A Spate of Supreme Court Decisions
By Zachary Margulis-Ohnuma The Supreme Court has been busy lately fine-tuning the law on search-and-seizure, assistance of counsel and post-conviction procedures. Here’s a super-quick rundown of the holdings from the past couple of weeks — and one or two biased comments.
Do the Sentencing Guidelines Matter? The Commission Weighs In
BY ZACHARY MARGULIS-OHNUMA Since the Supreme Court made the federal Sentencing Guidelines advisory and not mandatory on courts in 2005 in U.S. v. Booker, judges have struggled with how much weight to give the Guidelines in particular cases. Different judges have reached different results in different circumstances. Some well-formulated Guidelines command respect, and are frequently …
“The drug trafficking offense guideline was born broken”
By Zachary Margulis-Ohnuma Judge John Gleeson of the Eastern District of New York has written a scathing opinion criticizing the U.S. Sentencing Guidelines approach to drug trafficking offenses. The Guidelines for heroin, cocaine and crack are, in short, unjustifiably high and “structurally flawed.” Judge Gleeson explains: “The flaw is simply stated: the Guidelines ranges for …
Congress Quietly Increases Child Pornography Penalties
By Zachary Margulis-Ohnuma Late last year, President Obama quietly signed into law the Child Protection Act of 2012 (“CPA”). Primarily publicized as a piece of anti-trafficking legislation, the CPA has serious sentencing consequences for federal defendants accused of child pornography offenses. Under the CPA, some defendants convicted of possessing or accessing child pornography depicting young …