Articles Posted in What’s New

Criminal cases in federal court are driven by mandatory minimum sentences. Drugs, guns, child pornography and sex trafficking (among others) all carry mandatory minimum sentences which used to mean that, if the government has the evidence and won’t let you plead to a lesser crime, you do the time. That just might have changed today with the advent of United States v. Zullo, an important decision handed down today by the Second Circuit Court of Appeals.

Zullo concerns “compassionate release,” an old doctrine that has been brought back to life by, ironically, the COVID-19 pandemic that has been surging through the federal prisons (124 inmates dead, and counting). Compassionate release is the idea that when there are “extraordinary and compelling” reasons, judges should be allowed to release inmates before their sentences are over. Until 2018, compassionate release could only be sought by the Bureau of Prisons itself–judges could not act unless they were, in effect, asked to by the government that locked up the defendant in the first place. It pretty much never happened.

That changed in late 2018, when 18 U.S.C. 3582(c) was amended to permit compassionate release based on a defendant’s own motion 30 days after requesting the warden to file for him. Since COVID started, judges have been releasing many more inmates, most of them sick or elderly. Many sick and elderly people were released even before their mandatory minimum terms expired. Early releases are allowed so long as the judge finds that “extraordinary and compelling reasons” exist and the release is consistent with the objectives of federal sentencing, which are set forth in the Sentencing Reform Act, 18 U.S.C. 3553.

A year or so working as a reporter at 220 E. 42nd Street around 1993 completely changed my life. It was part of nearly four years I spent on the staff at the Daily News, once one of the largest-circulation publications in the world but already in the midst of a long, slow decline. I was honored to have met most of the “oddballs and brilliant people” that my sometime client, mentor, and extraordinary professor of journalism Tom Robbins describes in his wistful remembrance in the New Yorker.
I was humbled every day to be part of a paper going out to hundreds of thousands of readers in the world’s greatest city. I sat behind Jerry Capeci as he worked his FBI sources to figure out who set off thnewspapere enormous bomb in the WTC parking garage. Gene Mustain and I wrote about that era’s heroin epidemic: “Smack is Back.” Before we moved to the Bronx Bureau with Bob Kappstatter and Rafael Olmeda, my dearly departed friend Raphael Sugarman managed to trade food stamps for drugs in the wintertime on 125th Street and we wrote it up from that seventh floor newsroom.
For two miserable weeks, I filled in for the amazing lobster shift reporter, Tom Raftery; after everyone else went home, my biological clock was so out of whack I could scarcely think, let alone think straight enough to report to the morning editors or write anything coherent. I worked for Don Forst the summer before, then interviewed him when New York Newsday shut down. I “interviewed” Michael Jackson as he munched on sushi with Lisa Marie Presley and reported on the conception of Lourdes Leon. I worked and competed with Rob Speier, the wunderkind who lasted only about a year, was profiled by 48 Hours prancing on 42nd Street, and then left to become a real estate mogul.

The Law of Zachary Margulis-Ohnuma and Law Offices of Daniel McGuinness filed an Amended Complaint in federal court today detailing harrowing allegations of severe, pervasive, routine, and tolerated sexual abuse by prison guards against six women. According to the allegations in the complaint, women have been raped by guards all over the state — from Lakeview Shock Incarceration Center near Lake Erie, to Taconic Correctional Facility just north of New York City.

Prison rape by male officers is so common, so poorly investigated, and so tolerated, that a culture of sexual abuse exists in the state prisons. The new complaint explains:

From 2015 to 2019, the Department of Corrections and Community Supervision (“DOCCS”) housed approximately 2,500 female inmates, around five percent of the total inmate population, in six facilities throughout the state. These women were guarded by male officers, who routinely engaged in illegal sexual activity with individual victim inmates over long periods of time. Under the New York Penal Law, an inmate can never consent to sexual activity with an officer. See N.Y. Penal Law § 130.05. Nonetheless, DOCCS supervisors cultivated a culture that allowed male staff to prey on female inmates to satisfy their sexual desires. Male staff were barely supervised and left alone with women under their control for long periods of time in unmonitored areas of the prisons. They had a system of warning each other if a supervisor was approaching and created a climate of fear and intimidation against any woman who complained about sexual attention from an officer.

Amid calls to abolish the police — which would likely make most of us safer in most situations — the New York State legislature has enacted a welcome reform: on Friday, the measure to repeal Civil Rights Law 50-a was signed into law. That means cowardly cops can no longer hide behind this phony privacy law to keep people from finding out about discipline against them.

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This officer appears to be advising his fellow officers to turn off their body-worn cameras in the aftermath of shooting Miguel Richards. Miguel was still alive at the time. The repeal of Civil Rights Law 50-a should make the officer’s disciplinary history available to the public.

Groups like the Innocence Project and the New York City Bar Association have been pushing for the law’s repeal for at least eight years. In recent weeks, they were joined by the families of victims of police violence. Hats off to the legislature for bringing about this important and politically fraught reform (up next: break the police unions).

For Immediate Release

New York, NY June 3, 2020 – Miguel Richards was shot and killed by New York City police wearing body cameras on September 6, 2017. But the NYPD edited the video footage to mislead the public about what really happened, according to lawyers for the Richards family.

Now Richards’s parents are calling on the state legislature to repeal the law that let the police deceive the public for almost two years after their son was senselessly shot down during a “wellness check.” Measures to reform the law are pending. Gov. Cuomo said on Saturday that he would support them.

Every decent human being in America who saw the expression on Minneapolis Police Officer Derek Chauvin’s face as he caused the death of George Floyd recoiled in horror.

The Hennepin County District Attorney’s Office-at least so far-has not concluded that Chauvin intended to kill Floyd, just that he acted with a “depraved mind” and without regard to human life. He faces up to twenty-five years in prison. Read the criminal complaint here.

Police Officer Derek Chauvin Killing George Floyd
The fate of the other officers who stood by for nearly nine minutes, keeping a concerned crowd at bay, is still uncertain.

We are delighted to announce that Benjamin Notterman has joined the Law Office of Zachary Margulis-Ohnuma as an associate attorney. Mr. Notterman comes to us from the New York University Center on the Administration of Criminal Law, where he was a research fellow investigating executive clemency under the direction of Prof. Rachel Barkow. As an associate at our firm, he will focus on wrongful convictions, civil rights, victims’ rights, and sex crimes.

Mr.  Notterman is an experienced civil litigator. He graduated from NYU School of Law in 2014 and went to work at Jones Day, a large international law firm. At Jones Day, he assisted with large-scale discovery and produced briefs on dispositive motions in state and federal courts. He then clerked for two years for  federal district judge William J. Martini in the District of New Jersey. He has also researched legal issues to support impact litigation in the areas of housing, public benefits, and prisoners rights for the Legal Aid Society. He got his start in clemency by drafting a petition for a death row inmate for the Center for Death Penalty Litigation in Durham, North Carolina while he was still in law school.

Mr. Notterman is the author with University of Buffalo Law School Prof. Guyora Binder of “Penal Incapacitation: A Situationist Critique” which was published in the prestigious American Criminal Law Revier in December 2016. He has also been published in the Huffington Post and the NYU Review of Law and Social Change.

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.

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