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.

Have a look at David Leonhardt’s recent NY Times newsletter, which posits that executive clemency is a critical component of our current criminal justice system. The newsletter came in the wake of scathing criticism of Pres. Trump’s use of clemency to help his political friends.

Approximately two million Americans are  behind bars, giving the United States one of the highest incarceration rates in the world. High rates of imprisonment are due to extraordinarily long sentences, even for nonviolent crimes; arbitrary systems of parole; and wrongful convictions. Clemency can help.

Leonhardt cites as a prime example of the positive power of clemency one of our cases, that of Felipe Rodriguez. Felipe was freed in January 2017 after we teamed up with the Innocence Project to petition Gov. Andrew Cuomo for his release via a commutation of his sentence (clemency comes in two flavors: a pardon erases the conviction as though it never happened; a commutation reduces the person’s sentence). Felipe always maintained his innocence and the governor freed him in part because of serious questions about the integrity of his conviction, and in part because of his phenomenal prison record, which included construction projects, editing a newsletter, and counseling serial killers.

The Law Office of Zachary Margulis-Ohnuma  is pleased to announce that  Teresa McNamara has joined our office as the new Director of Marketing. Teresa McNamara

Teresa, an accomplished actor, will work with us while still pursuing her acting career. Her experience in social media and writing, combined with a creative mindset, will help increase our presence while ensuring all clients receive the attention they deserve.  With a background in customer service, Teresa is also positioned to assist us in ensuring that the office runs smoothly to meet client needs.

Teresa holds a B.A in Production Studies from Clemson University, and an M.F.A in Acting from The Catholic University of America.  She hails from South Carolina and has been a proud New Yorker for the past five years. She can be reached at marketing@zmloaw.com.

Thirteen years ago Nina Morrison, a staff attorney at the Innocence Project – the organization, founded by Barry Scheck and Peter Neufeld, that spawned the movement to use DNA to free the innocent in the United States – came across the case of Felipe Rodriguez.

Felipe was a Brooklyn construction worker and a new father in 1988, when police started investigating him for a murder in Queens the year before. He was arrested the following year and convicted after a trial in 1990.

But the case against Felipe had more holes than Swiss cheese.

“Motion Granted.” With those words, the Hon. Joseph Zayas of Queens Supreme Court vacated the murder conviction and dismissed the indictment against Felipe Rodriguez.

It was a triumphant end to a fight that has consumed our office since 2015 and the Innocence Project since 2007.

In all those years, Mr. Rodriguez was granted executive clemency by Gov. Andrew Cuomo based on his stellar prison record, got married, worked steadily at a hotel, helped raise two beautiful children, and was reunited with his adult son, who was just three when Felipe was wrongly convicted in 1990.

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).

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