Articles Posted in What’s New

Guest column by William Dobbs, Esq. from The Dobbs Wire.

Is the sex offense registry growing or shrinking?https://www.zmolaw.com/news/wp-content/uploads/2019/10/Screen-Shot-2019-10-13-at-3.20.30-PM-300x232.png

Hard to tell because the long-time keeper of the national statistics, National Center for Missing and Exploited Children (NCMEC), has stopped updating the figures.

https://www.zmolaw.com/news/wp-content/uploads/2019/09/Screen-Shot-2019-09-29-at-10.33.38-PM-300x235.pngThe past week was one of extraordinary revelations relating to foreign policy and corruption at the top of the government of the United States. The public got to see two documents, just months after they were created: first, the “TELCON” or transcript of a phone call between President Donald Trump and Ukrainian President Volodymyr Zelenskyy that took place on July 25; then, twenty-four hours later, a detailed letter from an unnamed whistleblower to congressional oversight committees accusing the president of self-dealing that sounds like treason — soliciting foreign interference in American elections as a condition of military aid.

The documents read like filings from a criminal trial. Here is one defense lawyer’s perspective.

The letter, which is referred to as the whistleblower’s complaint, resembles an affidavit in support of a search warrant or a criminal complaint in federal court. It is, in effect, sworn to and signed by a witness — a law enforcement officer in court, probably a CIA or foreign service officer here — but written by a lawyer. As the New York Times pointed out, the whistleblower complaint is unusually well written: right to the point, active verbs, clear sourcing. It incorporates law as necessary, but does not let legalese or George Orwell’s tricks-of-the-trade get in the way of clear communications. At the very outset of a federal criminal case, an experienced lawyer has a sense of how strong the government’s case is based on whether the criminal complaint reads like this (criminal complaints are used in federal court to establish probable cause for an arrest; to proceed to trial, the government must then obtain an indictment, which is voted on by a grand jury but does not spell out the basis for the probable cause). Many complaints are vague, verbose and fall back on the passive voice. Those linguistic weaknesses frequently cover holes in the evidence that become more apparent as the case develops.

Twelve federal appeals courts have said that the FBI acted in good faith when they used a Virginia warrant to search thousands of computers around the world in the controversial Playpen child pornography case. Our office last week asked for a special hearing in the Second Circuit to challenge that conclusion, with a series of simple arguments that, somehow, the appeals courts keep missing – including a Second Circuit panel that ruled on the warrant last month.

Click here for a redacted version of our appellate brief and here for our Petition for Initial Hearing En Banc, an unusual request effectively required by the Second Circuit’s August ruling.

The logic is simple and the stakes are high.

In the latest perversion of the laws against child pornography, Maryland’s highest court late last month upheld the conviction of a teenage girl for sending around a one-minute video of herself performing fellatio.

The recipient of the fellatio was not prosecuted.

Neither were the girl’s erstwhile friends who, after a falling out, may have distributed the video (the court, in a lengthy decision, pointed out that the video was originally distributed in a super-private group chat with two friends, only one of whom later became hostile to the girl in the video).

Defense attorneys were turned away from the high rise federal jail in lower Manhattan known as the Metropolitan Correction Center on Saturday morning. The Legal Department told us, it was “due to an earlier security issue.” Apparently, they were scouring the jail to find Jeffrey Epstein’s killer.

https://www.zmolaw.com/news/wp-content/uploads/2019/08/Screen-Shot-2019-08-12-at-6.18.46-PM-300x110.pngEpstein was found dead by hanging. He had been taken off suicide watch less than two weeks earlier. Suicide watch is a special unit where each prisoner is observed 24/7 by another prisoner who has special training. Epstein had been placed on suicide watch after he was found unconscious with neck injuries on July 23. Seems the prison hierarchy thought six days was enough even for a man whose rich, hedonistic, rapacious lifestyle had come to a crashing end. From there, they put him in the “SHU” — the notorious special housing unit, typically reserved for the most violent inmates. Then, they took away his roommate. Then, guards stopped checking in on his cell every thirty minutes like they are supposed to.

He was found dead at 6:30 a.m., according to the New York Times.

The clouds parted just in time for Antonio Yarbough to enjoy a piece of cheesecake on a Manhattan rooftop last Thursday. He was celebrating five years since he walked out of a Brooklyn courtroom a free man. But he still does not know who killed his family.

IMG_3241-225x300EVWSG4FLI66A4VDF6ZCFQUHW2M-200x300Friends, relatives, reporters, and not-a-few lawyers gathered to honor Tony and help him celebrate his exoneration, just as we celebrated on a Manhattan rooftop in June 2014. Tony’s wrongful conviction for the slaughter of his family — which was actually committed by an unknown man who raped and murdered a fourth person seven years later — was one of the most appalling episodes of the reign of Charles Hynes as Brooklyn District Attorney. Hynes was defeated by Ken Thompson in 2013. Thompson agreed Antonio should be released after just five weeks on the job.

Antonio has spent the last five years recovering from what the state did to him. He has reconnected with his extended family and old friends. He has made new friends. He has worked at a hotel. He now donates his time to the Alliance of Families for Justice, where he sits on the board (alongside actor Danny Glover) and provides support for families affected by the criminal justice system. Antonio has touched countless lives with his quiet grace and heroic resilience. As he said on Piers Morgan the day after his release, he has no time for bitterness.

A 200-month sentence imposed on a first-time child pornography offender was thrown out by the Second Circuit Court of Appeals on Friday because the judge erroneously assumed that the defendant must have committed a prior sex offense.

The reversal was the second time that the circuit court vacated the sentence imposed on Joseph Vincent Jenkins, who was convicted after trial of transporting child porn on thumb drives and laptops as he traveled to his parents’ vacation home in Canada. The first sentence, 225 months, was too long because there was no basis for Chief Judge Glenn T. Suddaby’s conclusion that Jenkins was at a high risk to re-offend. Jenkins had never been convicted before, was not accused of attempting to harm a child, and “never spoke to, much less approached or touched, a child.”

This time, Judge Suddaby erroneously imposed nearly seventeen years on a first-time, non-violent, child pornography offender by cherry-picking studies that, he said, showed that sex crimes against children are much more common than what is reported. He found that studies show “inconsistent findings concerning the prevalence rate of sex offending by non-production offenders.” Judge Suddaby went on to note features of Jenkins’s personality identified in a competency report, which, he said were correlated with sexually dangerous behavior. Based on this analysis, Judge Suddaby concluded that “it was likely that Jenkins had committed a prior–undetected–sex offense, that he therefore had a high risk of recidivism, that a lengthy sentence was justified.”

This year’s New York State budget passed earlier this month with the most sweeping criminal justice reforms in at least a generation. The changes go into effect in 2020 and will change almost everything about defending people in New York State cases, where the vast majority of arrests in New York are handled. How will they affect your case? Read on.

First, “Discovery Reform” will replace the New York “Blindfold Law.” Under the current system, defense lawyers learn only what DAs want to tell them abut the case until the moment before trial. Under the new rules, starting on January 1, 2020, discovery is going to be “open, early and automatic.” That means that prosecutors will have to hand over all information about the case “as soon as practicable” but not more than 15 days after the defendant is arraigned, at least in most cases. And discovery is much broader than it ever was, including not just trial exhibits but also all witness statements, all grand jury minutes (not just of testifying witnesses), names and contact information for all potential witnesses, exculpatory information, and pretty much anything else in a prosecutor’s file. If you are being charged with a felony, you get your own statements at least 48 hours before the grand jury presentation–that can give you a chance to testify in the grand jury without worrying about getting tripped up by a statement you made previously to a detective. Perhaps most importantly, if the DA makes a plea offer, you are entitled to full discovery before the DA can withdraw the plea offer. Prosecutors cannot condition the plea offer on a waiver of discovery rights. No longer will defense lawyers ask for discovery during plea negotiations only to be told, sarcastically, “your client knows what he did.” Click the link for Part LLL of Chapter 59 of the New York State Laws of 2019, the full text of the new New York criminal discovery rules.

Second, you have a much better chance of getting released while your case is pending under New York state’s new bail rules. There will be mandatory release for all misdemeanors and non-violent felonies–except, of course, sex offenses (and cases involving contempt of domestic violence court orders). For more serious offenses, the court can only set money bail with the least restrictive conditions and with at least three options or ways to pay: cash, unsecured bond, and partially secured bond. Electronic monitoring can be used to prevent flight in serious cases, but you won’t have to pay for it and there are many limitations. If the court sets a monetary bail, it will have to consider the defendant’s ability to pay and any undue hardship, and it put its reasoning on the record. As a practical matter, the reforms should lead to fewer thoughtless decisions over bail that needlessly separate people from their families even though they are presumed to be innocent. Click the link for Part JJJ of Chapter 59 of the New York State Laws of 2019, which shows the amendments to the bail rules and Desk Appearance Ticket provisions.

Judge Raymond Dearie of the Eastern District of New York ruled yesterday that ZMOLAW client Adamou Djibo is entitled to a new trial because the government wrongfully withheld thousands of pages of relevant information from a cooperating witness’s cell phone. The reversal follows a remand from the Second Circuit: the appeals court directed the trial court to permit Djibo time and public funds to obtain a full translation of the material, which turned out to contain messages in Swahili that undercut the government’s theory that Djibo was the mastermind behind a ring that smuggled 100 kilos of heroin from Africa.

The government’s main evidence was the testimony of cooperating witness Stanley Walden, who struck a deal to testify against Djibo shortly after being stopped flying in to JFK with more than six kilos of low-grade heroin in a secret compartment in his suitcase. Walden protested that the drugs were not his, but belonged to Djibo and that he was just a courier. Text messages on his phone in English appeared to corroborate his claim, and the feds arrested Djibo as he boarded a flight to London a few weeks later.

The government handed over the English-language texts with Djibo, but nothing else from Walden’s phone, despite repeated requests many months before trial. Not relevant, said AUSA Karen Koniuszy. Texts on Djibo’s phone were suppressed because the border agents illegally searched it when he was stopped — but that’s another story.

Super Lawyers
Top 100 Trial Lawyers
NACDL
Super Lawyers
The National Trial Lawyers