Desk Appearance Ticket Can Trigger Mal Pros Claim

Whether the issuance of a desk appearance ticket ("DAT") triggers a malicious prosecution claim is a legal question that has caused more than it's share of confusion and legal wrangling. As of today, however, the answer is definitively Yes. At least if you're in federal court in New York.

Rikers Corruption Probe Nets Seven

As discussed here in a July 9 post, New York City's Department of Investigation has been engaged in an intensive and detailed probe into misconduct inside the City's largest jail complex, Rikers Island. As discussed then -- following the arrest of three officers for assaulting an inmate and then lying to cover it up -- DOI Commissioner Mark Peters acknowledged “a pattern of lawless conduct at Rikers that must be brought under control.” Peters promised more to come, and he wasn't kidding.

Criminal Sentencing and Judicial Activism

This is a warm and fuzzy story about judicial activism in criminal sentencing. I mean that in the best possible way.

It comes by way of the New York Times and concerns one federal judge's frustration that badly constructed mandatory minimum sentencing laws required him to impose a grossly disproportionate sentence. The law said the sentence was legal and just; basic decency and fairness said otherwise. The story has a happy ending.

Roll It Up. Light It Up. Smoke It Up. Sayeth the NY Times.

The headline credit really belongs to Cypress Hill, but we'll give the Times a h/t. In an Editorial, the paper of record called for the federal decriminalization of marijuana. That's a big deal. As the editorial acknowledges, it isn't happening anytime soon, but momentum is growing and legalization feels inevitable.

I'm long past my weed days and I don't have any skin in the game. But, rationally, banning marijuana use makes no sense. It's perfectly legal to smoke cigarettes or drink alcohol, even though, as the Times notes, tobacco and alcohol are worse for your health. Bluntly speaking (yeah, I know), if health were our primary concern, cigarettes (and a host of other stuff), would have been banned ages ago. If we were worried about substance abuse and people getting wasted, we'd still have prohibition. So no, those aren't really issues that have any social traction.

Reining In Civil Forfeiture

Kentucky Senator Rand Paul has sponsored a bill that would substantively limit the federal government's ability to seize private property under civil forfeiture laws. In simple terms, the federal government currently has the right to seize your money, vehicles, property, etc., without arresting you if it can allege that the goods were used in or connected to certain criminal activity. As Radley Balko discusses in a useful article, the feds often work hand in glove with local state agencies to circumvent those pesky state laws meant to limit these noxious property grabs.

Every now and then the libertarians cross over to the sunny side of the street.

Stephen Gillers' Unfortunate Choice of Words

Stephen Gillers is a widely respected expert on the legal profession and a go-to person for journalists looking for a quote on lawyers' conduct. For some reason, the New York Times sought out a soundbite from Gillers about the increasing number of civil rights lawsuits concerning unjust convictions and Gillers was careless in his response:

It’s like ants at a picnic. All of a sudden the food’s on the table and here they come.

It's an unfair statement that insults civil rights lawyers and greatly diminishes the grievous harms at issue in these suits. I suspect Gillers, a longtime professor at NYU's School of Law, regrets his choice of words.

It is certainly true that when some lawyers find a new niche that has the potential to be lucrative, others take note, and before you know it, there's a flood of lawyers who are suddenly expert in this new area. That is not what is happening here. Not by a long shot.

Criminalize the NYPD Chokehold?

A proposal was floated today to make it a crime for police officers to use a chokehold like the one used against Eric Garner. My first thought? Unnecessary and useless. Sure, the footage of the assault on Garner was highly disturbing, and the NYPD's apparent refusal to take any steps to rein in the rampant use of the banned chokeholds cries out for political action. But this sort of limited, story of the day legislation misses the point.

What is missing, and what has been lacking for years on end has been political will, not available remedies. There are plenty of legal weapons on the books to punish criminally violent officers and deter future misconduct. There are already laws that outlaw the use of violence, like that employed against Eric Garner. What we do not have is the willingness to use them, and until that changes, criminalizing this specific hold or that particular technique won't ever be more than feel-good grandstanding.

Warrants Permit Gov't To Seize Entire Email Account

Can the government obtain a search warrant for particular emails you may have sent or received to look for evidence of criminal conduct? Sure. Can the government execute that warrant on your email provider to get those emails? Of course, that's the point. Can the government use the warrant for certain emails to obtain all of your email correspondence and then sort through it for the ones it wants? The answer to this last question depends on which judge you ask, but according to a ruling last week, the Fourth Amendment offers you no protection.

That's A Very Big No-No

Fun story of the day comes from Kentucky, by way of the Lexington Herald-Leader (with a h/t to Above the Law). In short, a prosecutor carried on an affair with a defendant in a felony drug case, impregnated her, and then moved to revoke her probation after she told his wife and ended the relationship. Way to keep it classy, Kentucky.

The Killing of Eric Garner

Yesterday afternoon, a group of NYPD police officers surrounded Eric Garner on Staten Island's Bay Street. Apparently, the officers believed Garner had been selling untaxed cigarettes and they planned to arrest him. Garner, an asthmatic  400 pound 43 year-old man, denied the allegations and complained that the officers were repeatedly arresting him without cause. Much of the event was captured on video.


The officers moved in and one grabbed Garner from behind in a deep choke hold. They tumbled to the ground with several other officers jumping in to cuff him. Garner, who, while not initially compliant, was not fighting the officers, called out several times that he could not breathe. The officer did not relent, sinking the hold in deeper, while an officer pushed Garner's head into the sidewalk.

Slowly Garner stopped moving. He became unresponsive. Then he died. The NYPD later issued a statement that he died at a local area hospital of a heart attack. This is certainly possible. He was a large, overweight man who was suddenly assaulted by several men who choked him for an extended period of time. That his body would fail him in response is not surprising. Whatever the ultimate cause of death, wherever the place of death, a man died needlessly and stupidly. Garner left behind a wife, six children, and two grandchildren.

This incident is deeply troubling. As an initial matter, it is far from clear that Garner had been engaged in any criminal conduct. At worst he had sold untaxed cigarettes. The use of force that followed seems to my eyes to be excessive, poorly thought out, and unnecessary.

The Slow Fall of Joe Hynes

As many criminal defense lawyers who have practiced in Kings County can tell you, Charles Hynes's office had a reputation for sometimes playing dirty pool and engaging in occasional sharp practice. Not surprisingly, Brooklyn is responsible for more than its fair share of wrongful convictions. On the plus side, Hynes's successor, Ken Thompson, is making a yeoman's effort to investigate possible miscarriages of justice. Better still, attorneys for the wrongly convicted are making headway on their suits alleging that Hynes's office was deliberately indifferent to police and prosecutorial misconduct, including the withholding of information they are required to disclose, such as Brady and Rosario material.

NY Legislature Rejects Unjust Imprisonment Act

In February 2014, as I wrote at the time (here and here), New York Attorney General Eric Schneiderman threw his weight behind a proposed new version of the state's statute permitting those wrongly imprisoned to recover against the State. The amended statute would loosen the stringent qualifiers, making it easier for somebody who was wrongly convicted and imprisoned to recover. According to the New York Law Journal, the proposed bill, although backed by the A.G., died in committee and never made it onto the Senate floor for a vote. Similarly, as previously reported, a proposed Commission on Prosecutorial Conduct was recently shot down by the NY legislature.

As more and more wrongful conviction cases come to light, it becomes increasingly apparent that there are fundamental flaws in our criminal justice system. These include, but are not limited to, the way in which the police are policed and the lack of any prosecutorial oversight and the safety net of absolute immunity for prosecutors. Albany's refusal to acknowledge the obvious, or take any steps to address these issues will only exacerbate these problems.

More Money for More False Confessions

Juries love confessions. Sure, DNA evidence is compelling stuff, and it's hard to argue with quality video footage. But there's no getting around the power of an "I did it, I killed her" sort of confession, testified to by a veteran detective, trained in the art of giving testimony. If you believe the witness, it means that the defendant has said out loud that he committed the crime, and, as any person would agree, nobody would own up to a crime they hadn't committed. Yet, as has been written about in this blog before, it is becoming increasingly obvious that people can and do give false confessions.

For instance, the stories of Adrian Thomas, and others (see here and here) are examples of how coercive police tactics can obtain confessions of guilt from innocent people. This is not to say that confessions are meaningless; far from it. But we know too much about the persuasive power of skilled interrogators and general human frailty to not insist on a healthy does of skepticism.

Last week, New York's Appellate Division upheld an award of $5.5 million for a man whose coerced confession caused him to be imprisoned for more than 9 years. He lost his wife, his career, and children. The money, which is a substantial award by New York's Court of Claim standards (as partially reflected by Jabbar Collins's settlement for $3 million for 16 years), does not come close to making up for his losses.

Guard-on-Inmate Violence at Rikers

The New York Times today published a lengthy, in-depth report on the seemingly growing incidents of violent assaults by guards on inmates at Rikers Island. The victims are primarily inmates suffering from mental illness. It's a sad indictment of the the City's Department of Corrections and reveals a culture of violence among many COs at Rikers that is widely accepted, if not endorsed throughout the DOC. Michael Winerip and Michael Schwirtz have written a detailed and informative article that shines a bright light into corners most people hope never to see.

CJA and §1988 Fee Requests

Having elected to continue his blog -- which comes as a relief, but that's a different post -- U.S. District Judge Richard G. Kopf explains his approach to CJA vouchers. For my colleagues who submit these things, it is an interesting look behind the curtain. For those of us who are not CJA attorneys, it is still an interesting look at how one judge conducts his review of fee requests.

Comedic Break: Poor Legal Behavior

A quick question for lawyers and non-lawyers alike: is it a good idea to call your adversary an "asshole" or to warn them not to "try any shit with the Court" and remind them, "don't fuck with me?" Sure, I get that it would be rude and all that, but are there ethical implications? Does it help or hinder your litigation strategy? Will it improve the Court's perception of you and your positions? All of which comes back to the first question, which is whether it's a good idea.

While you're pondering that, let me ask this: would it be wise to memorialize the statements, just so there's no dispute over your precise language? And for good measure, how about the clandestine taping of an adverse expert's visit to your client's office; a good idea?

A federal judge in the Southern District of New York was recently asked to opine on just this situation. Not suprisingly, he was not a fan. (An article on the recent ruling can be found in a New York Law Journal article here; the case is Alexander Interactive v. Adorama, 12 CV 6608, for those with too much time on their hands). My guess is that he was more surprised that comments were written down than he was that they made in the first place.

Jabbar Collins Settles State Law Claims

Jabbar Collins, who was wrongly prosecuted and convicted by Brooklyn DA Charles Hynes's office, and who then languished in prison for 16 years, has just settled his claims against the State of New York for $3 million, according to the New York Law Journal. His federal claims against the City of New York, and the prosecutors and detectives who framed him, will continue. This is good news for Collins, who has fought long and hard for this result.

It also may pave the way for the City to settle the federal action. With Hynes out of office, and a new Mayor and a new head of the Law Department running the show, there's no political impetus to keep protecting Hynes's flank. The Collins prosecution was a travesty, and Hynes's refusal to acknowledge it until long after it was derided as shameful in federal court, says a great deal about his legacy. It's time to settle accounts (a la the Central Park Five), and if Mayor de Blasio was the slightest bit sincere when he talked about the need to do what's right for those to whom so much wrong was done, Collins will receive his just due.

Rikers Island Investigation Heats Up

New York City's Department of Investigation today arrested a corrections captain and two guards for assaulting an inmate at Rikers Island, beating him unconscious with a baton, and then falsifying records to cover up their misconduct. This was apparently not an isolated incident and more arrests are expected. It took well over 20 months for the arrests to occur, but better late than never.

According to the New York Times, the DOI Commissioner, Mark Peters, stated that the arrests followed a long-running investigation into “a pattern of lawless conduct at Rikers that must be brought under control,” and that “the victims here were not simply the injured inmate but the justice system itself, which cannot properly function when sworn law enforcement officers falsify documents to cover up crimes.” Tough talk. Let's hope there's something to it.

Smoking It Up In Brooklyn

New Brooklyn District Attorney Ken Thompson announced today that his office will no longer prosecute people for possessing small amounts of marijuana, with certain exceptions. Good news for potheads, right? Not so fast.

NYPD Commissioner Bratton responded by saying that the police have no intention of rolling back on weed arrests, even though the DA's office won't prosecute. This clash of policies suggests lots of people will still be arrested for smoking pot, brought to their local area precinct, held and processed, eventually transported to central booking, and then, some 15 to 24 hours after their arrest, let out the back door. All in all, not the best use of NYPD resources.

It's an interesting dilemma. On the one hand, Thompson knows how absurd the City's enforcement of marijuana can be, and that the NYPD appears to disproportionately target people of color. On the other hand, Bratton is responsible for enforcing the law in all five boroughs, and he is correct that the law ought to be applied consistently across the board. You can't have something be legal in Brooklyn but illegal in Queens. Moreover, drug legalization should ultimately be a legislative act, not something done by executive fiat.

Thompson takes care to point out that not every Cheech and Chong can legally light up in public. Kids who are 16 and 17 will be shunted off to drug programs, and those who smoke in public places or around children will be charged. Similarly, folks with open warrants, violent felons, suspected dealers, and repeat possession offenders will all be prosecuted.

The exceptions almost swallow the rule. They also beg the question of whether Thompson's plan makes any sense to begin with. If smoking pot around kids is criminal and should be punished, why is it not so bad if you walk down the block and do it? And what is this 'repeat possession' nonesense? The guidelines are so loosey-goosey, whether one is prosecuted may come down to nothing more than which ADA happens to be working in ECAB that night. (ECAB being the unit that makes the initial decision whether to charge).

In the short run, the new policy probably won't have much affect on arrest numbers, and it won't impact on civil rights cases, since the laws banning marijuana are still in effect. In fact, Thompson's announcement may be all, ahem, all smoke and no substance. Still, it's a first step, and not surprisingly, it has come from Ken Thompson.

Intakes, Lawsuits and Regrets

I was reading about a very silly lawsuit filed the other day in New York's Bronx Supreme Court and it made me think about intakes and new cases. This may seem like a bit of a tangent, but stay with me here. I wrote not all that long ago about lawyers needing to know how to shut up, and more recently about negotiations as a critical skill. But, if I could impart just one pearl of wisdom to young lawyers, it would be this: be really careful when you're deciding whether to sign up a case.

Taking on a client simply because you don't have a lot of clients is a bad idea. Repeat after me: bad cases are not better than no cases.

That is because bad cases will suck up tremendous amounts of time, particularly if you're going after a deep pocket that can afford to drag you out into deeper and deeper waters. You have to commit huge blocks of uncompensated time to a case that is only ultimately going to be dismissed. That is time you will need to litigate real cases as your practice grows. If your practice doesn't grow, that is time you could spend trying to grow your practice, sleeping on your couch, or doing virtually anything other than litigating a highly contentious losing case on a contingency basis.

What about taking on a case because it might get you some press? If your name is in the papers, your phone will start ringing off the hook immediately, right? Wrong. Whoever told you that left out the part about why your name is in the papers. That part matters.

Case in point: this lawsuit was filed by one Andrew Robert Rector through his counsel, Valentine Okwara, Esq., and names ESPN, Major League Baseball, the New York Yankees, and Dan Shulman and John Kruk. The gist of the complaint is that Mr. Rector fell asleep at a Yankee game that was being aired on ESPN. The cameras caught him snoozing, and Shulman and Kruk joked about it. So Rector did what any aggrieved person would do, he filed a lawsuit demanding $10 million in damages.

I considered posting the video clip and the summons and complaint, but thought better of it. While entertaining, it detracts from my main point, which is that you cannot be seduced by the idea that your client was on television, or that you targets are well known. It's fools' gold. But if you're curious, the clip is here and the pleading is here.

I'm not going to analyze the complaint in detail. Basically, Rector is claiming he was defamed and subjected to an intentional infliction of emotional distress because the commentators poked fun at him. Based on the limited clip, the comments were pretty light. According to Rector they were exceedingly vicious, although, it isn't clear that the commentators actually said any of the things Rector alleges. So maybe they were said elsewhere, or perhaps they are just made up. Straw men are often easier targets.

The bigger point is that this lawsuit appears to be a bit of a loser. I could be wrong. Maybe ESPN, MLB, and the Yankees will cave in and offer Rector hundreds of thousands, if not millions of dollars to make this go away. But I suspect not. My educated guess is that defense counsel will go on the attack and wipe out the suit on motion. And should that that fail, bury Rector and Okwara through the sort of withering and exhausting discovery that often follows a defamation and IIED complaint. This leaves Okwara with a lawsuit that will cost him many dozens of uncompensated hours (because who pays hourly to bring this sort of action?), while scoring him loads of free publicity, albeit as a figure of public ridicule.

A civil rights corollary, in terms of seductive value, often concerns third-party complaints that land innocent people in jail. Cases where innocent people are arrested for crimes they didn't commit but where civilians identify them as the person they saw commit the crime. These are tough cases. As a general matter, the police are not going to be liable for arresting somebody identified by a eyewitness as the perpetrator, since the identification creates probable cause, or at least qualified immunity from suit.

Yet, time and again, lawyers see innocent plaintiffs who suffered, who lost their liberty, perhaps their jobs, because they were wrongly named. It's a real tragedy for the person arrested, but it's not necessarily a case. In fact, it usually is not. That is because the focus at intake should be on the police conduct, not the actual innocence of the plaintiff. Perverse as it may seem, I have done well for people who were apparently (and sometimes admittedly) guilty of the crimes they were arrested for, but have struggled mightily to recover on behalf of the truly innocent. That is because, in the former cases, the officers often engaged in misconduct and then lied to cover it up, whereas in the latter, they were following their witnesses.

This is my long winded way of saying, be careful in intake. Don't fall in love with cases just because they may get you some media attention, or because you think the case will let you go big game hunting. Certainly, don't take on a case because you are suffering through a lull in your practice. You will find little reward for your efforts.

The analysis needs to be more clinical, more detached. Ask, what are the causes of action here and do I have enough facts to plead them, how good is my evidence, how can I prove up the case. If you find yourself having to rationalize the case, or if you catch yourself editing the facts while describing it to a colleague in order to make it seem less crappy, then you have made a serious mistake and it's time to work on an exit strategy.

A View From the Bench

The Hon. Richard A. Posner

It has long appeared to me that the federal judiciary existed inside a mysterious, secretive cloud. Lawyers I know often speculate on the judicial decision making process, wondering about whether, or to what extent, relationships between judges impact rulings, how appellate panels work collaboratively (if they do so in the first place), if judges are cognizant of the rather sizable qualitative differences between particular judges, and so forth.

So the interview with Judge Richard Posner in the July 2014 ABA Journal was a welcome breath of fresh air. Posner, a legal luminary who sits on the United States Court of Appeals for the Seventh Circuit, offers some candid comments that, while not exactly earth shattering, confirm the basic human frailties of the judiciary and affirms my pedestrian understanding of the Third Branch.

Appointed For Life

In his always entertaining and honest blog, Hercules and the Umpire, U.S. District Judge Richard Kopf humorously suggests that his fellow jurists ought to open sessions by playing the tune Appointed for Life. Not a bad idea, and I would enjoy seeing judges walk out to the song, like fighters approaching the ring.

The song is a gentle poke at federal judges who far too often become far too full of themselves. Kopf's post is a wry aside about such silliness and reminds me to again heartily recommend his blog. It's not that we always share the same perspectives, but I appreciate RGK's candor, good faith, and lack of pretension. For anybody who wants to hear a federal judge speak frankly and engage with his readers, put him in your feed aggregator for a few weeks, and flip through some old posts while you're there.

Should Negotiations Be A Mandatory Law School Course?

Negotiating is an essential skill for a lawyer (or most anybody else, for that matter). You would therefore be entirely correct to assume that it is ordinarily taught during law school. But in my experience, it is far from required, and that is a shame.

The negotiating basics seem obvious: ask for more than you really expect, be persuasive, sound sincere when you say you will happily pursue other options if settlement is not possible, and the like. But the process is elusive at times. Reading your adversary can also be daunting, as can be knowing how to close gaps and bring seeming irresolute matters to an acceptable compromise. Worst of all, sometimes it seems there is no way of knowing whether you are doing a fabulous job or if you've just sold the farm for pennies.

No Commission on Prosecutorial Conduct in NY This Year

A bi-partisan bill to create a Commission on Prosecutorial Conduct died in NY's Rules Committee in the Senate and House earlier this week. The Commission would have been empowered to investigate complaints of prosecutorial misconduct and -- like the Commision on Judicial Conduct -- would have been authorized to sanction prosecutors by admonishment, censure, or removal after a hearing. This was the first year it has been introduced, and hopefully it will be presented annually until it passes.

Main opponents: the state District Attorneys Association, which pretty much goes without saying. There is no good reason not to have such a commission, and the DAD's stated opposition (some of the disciplinary avenues might conflict with the state constitution) was easily remedied.

The almost complete lack of any redress in any forum for people who have suffered at the hands of prosecutorial misconduct is shameful. That NY cannot or will not install a relatively toothless Commission that would likely act only on the most egregious misconduct (or against the politically weakest of prosecutors) says a lot about the difficulty we face in holding prosecutors accountable.

NY Declines to Extend Brady

Earlier this week, in People v. Garrett, New York's Court of Appeals (the highest court in the state for you non-New Yorkers), ruled that prosecutors are under no duty to disclose lawsuits for civil rights violations by investigating officers as Brady material. It's not a stunning or game changing ruling. It's more of a just another brick in the wall sort of decision.