Prying Eyes: Federal Prosecutors and Attorney-Client Emails

The Washington Post today called for a moratorium on government prosecutors reading emails between federal inmates and their lawyers. It's absurd that such an editorial is necessary, or that anyone could reasonably debate the issue. Yet, the Post is currently on the losing side of this argument, as the government is doing all it can to intrude on the attorney-client relationship wherever possible.

In New York federal courts, whether to allow prosecutorial spying on these communications is up to each judge on a case by case basis. Some have ruled in favor of government access, others have firmly rejected it. (See here). But in view of how important it is for clients to be able to speak openly with their lawyers, and the vast advantages government prosecutors already have over these defendants, providing a meaningful opportunity for counsel and client to speak is a small matter.

CCRB Still A Paper Tiger

It was only a few weeks ago that New York City Mayor Bill de Blasio named Richard Emery as the Chairman of the Civilian Complaint Review Board. Not surprisingly, civil rights lawyers applauded the choice, being that Emery is a name partner in Emery Celli Brinkerhoff and Abady, LLP, a firm known for its plaintiffs-side work in civil rights cases. While undoubtedly a sound selection, it is likely a pointless gesture that will do little to prop up the CCRB, which has slowly lost whatever limited muscle it might have once had.

Judicial Shelter for Bad Cops and Prosecutors

The scales have long been tipped.

An enlightening op-ed piece in today's Times by Prof. Erwin Chemerinsky about how the federal courts have allowed the concept of absolute and qualified immunity to expand exponentially, making it far more difficult than it ought to be to hold officers, prosecutors, and governments responsible for deliberately engaging in unconstitutional conduct. Click here for the link.

For the uninitiated, absolute immunity means just that; the official cannot be sued, period. This applies to judges and prosecutors, as long as the latter is not acting in an investigatory capacity. Deliberately withholding evidence of innocence? Can't be sued. Letting your witnesses lie on the stand? You're good. Framing an innocent man? Well, you get the picture.

Thinking Like A Lawyer

Attorney Scott Greenfield, author of the blog Simple Justice, has an interesting post (here) about what it means to "think like a lawyer." Quoting from the Paper Chase, he talks about how we can get there when we are starting out with our "heads full of mush." He sees it as developing the ability to sift through the volumes of information to pick out the gems, the particular items of factual value, and to be cold-blooded about it, to put aside our own sense of right and wrong, or the need to do justice, in order to see facts and law clearly and without blinders. This is all true, but it requires just a bit more.

USA v. Kerik v. Tacopina v. Kerik Lurches Forward

The three-headed Kerik Tacopina litigation is slowly moving forward. As the Daily News observed today, the animosity between the parties has clearly spilled over to the lawyers, who are slugging it out in grand style.

These claims and counter-claims in this action -- Kerik says Tacopina is a drug-abusing, lying, adultering, racketeering attorney who disclosed Kerik's confidences to get out from under a possible federal investigation, and Tacopina is suing Kerik for saying that Tacopina snitched on Kerik to the feds -- were great grist for court-watchers. But now the lawyers have taken off the gloves.

Jabbar Collins Settles

Jabbar Collins, a man wrongly convicted by former Kings County District Attorney Charles Hynes's office in 1995 for a murder he did not commit, has finally obtained the justice he was seeking. Earlier this year, he settled his claims against the State of New York for $3 million for his unjust conviction and imprisonment, but proceeded with his federal civil rights claims. Yesterday, he reached an agreement with the City to resolve the federal lawsuit for an additional $10 million. It's an outstanding result for Collins and reflects excellent advocacy by his lead counsel, Joel Rudin. The litigation also has helped pave the way for other cases where people were railroaded by the KCDA.

The federal action contained a series of claims against various members of the NYPD, assistant district attorneys from the KCDA, and the City itself for being deliberately indifferent to police and prosecutorial misconduct. Meaning that Hynes knew that his office looked the other way when there was evidence that the police were withholding or fabricating evidence, or that assistant prosecutors were playing fast and loose with their obligations to disclose exculpatory evidence.

In 2013, United States District Judge Frederic Block ruled on a motion for summary judgment in Collins's case. While the Court dismissed the claims against the individual prosecutors under the doctrine of absolute immunity, it found sufficient evidence of Hynes's deliberate indifference to allow the claim to proceed.

As the NYLJ accurately notes today, the Collins case represented much of what was perceived to be wrong with Hynes's office. In fact, as discussed here and here, it illustrates an all too real tendency of Hynes's office to value convictions over the Constitution, to the point where far too many innocent people were convicted and imprisoned for us to acccept that these were outliers or unintended consequences of perfect storms. Rather, they were the inevitable by-product of an office that placed little value on its duty to do justice, to observe statutory and constitutional obligations in both spirit and substance, and looked instead at "winning" as the end goal.

Collins has stated that he hoped this litigation would vindicate his innocence, expose the shady practices of the KCDA's office, help drive Hynes from office, and provide a level of compensation that would signify the injuries that the KCDA cause Collins and his family. He has fully succeeded in all regards.

The decision, which sets out Collins's claims in detail, can be found here:

Jabbar Collins - Mem. and Order 2.15.13 by ml07751

Reality Check, Please

Kevin O'Keefe, whose "Real Lawyers Have Blogs," is someone I read regularly. His take on how and why to blog is informative and useful. However, I must take issue with his post yesterday, "Every law student is on law review."

I get that blogging offers law students an opportunity to speak, to be heard, and to join in conversations about legal topics of choice. And I understand that Law Reviews are usually closed clubs, offering membership to only a select few students, and publishing notes and comments of even fewer of those selected. But to equate blogging with legal scholarship is simply incorrect, and the post's Pollyannaish view on blogging as a professional endeavor is far too sunny.

A Little Ferguson History

Henry Davis

The Daily Beast's Michael Daly has uncovered a remarkable story of police abuse that borders on the Kafkaesque. (Thanks Overlawyered for the tip). Henry Davis was arrested by police when they mistook him for another Henry Davis for whom there was an outstanding warrant. Our Henry Davis had a different middle name and social security number, but no matter.

The arrest occurred nearly five years ago in September 2009. One interesting tidbit is that this happened in America's newest fave hotspot: Ferguson, Missouri.

The short version: the police beat up Davis, concussing him and causing him to bleed. A lot. Although they had to admit he wasn't the man named in the warrant -- the only reason he was picked up in the first place -- he was criminally charged for . . . wait for it . . . getting blood on their uniforms. You ought to read Daly's piece to get the full flavor of the case.

A quick check on Pacer reveals that Davis filed a civil lawsuit in the United States District Court for the Eastern District of Missouri in August 2010. During the case, according to Daly, the officers, who deny the excessive force, actually denied that they were bled on, even after being confronted with the signed criminal complaint. It also appears that the district judge found this perjury too minor for a due process violation, which is bizarre. If the officers lied to prosecutors about the damage to their uniforms in order to initiate and maintain the prosecution, Davis ought to be able to proceed to trial on a fabricated evidence/due process claim. The court also decided that the concussion was not a severe enough injury to merit a trial, which is another facially ridiculous ruling.

Discovery in the civil case has also revealed that the Ferguson police force lacked any sort of system for reporting or investigating police misconduct, tracking misconduct claims, and so forth. Generally, if there was a claim of excessive force, the officer in charge of the case wrote it up and placed the only report in the criminal case file. Nothing went into the individual officer's personnel file, no data base was created, and there was no meaningful way for the department to know whether any of its officers had a penchant for violence or other misconduct.

The case is going up on appeal to the United States Court of Appeals shortly. Good luck to Davis and his counsel.

Resisting Temptation

The NY Times today carried an interesting op-ed piece by Jesse Wegman on resisting arrest, ending with the suggestion that the NYPD ought to show a little more restraint. It's accurate as far it goes, but it could go further.

Mayor de Blasio is quoted saying,

When a police officer comes to the decision that it’s time to arrest someone, that individual is obligated to submit to arrest. They will then have every opportunity for due process in our court system.

That is wrong for a couple of reasons. First, a prosecution for resisting arrest requires that the arrest itself be lawful. In other words, you are only required to submit to a lawful arrest. More on that later.

Second, the promised due process is illusory. It's a nice concept, and we have all sorts of rules and such, but our system often produces gross injustices, with little or no recourse for the person who waited in vain to be heard and treated fairly. What is undeniable is that the "due process" de Blasio touts is a mirage, a system of rules that elevate form over substance. Or, as the old Roy Bean line goes, "First we have a fair trial, then we hang him."

Ferguson USA

It's hard to describe what's going in Ferguson. Partially because it appears so surreal, but mostly because the police there have attempted to impose a news blackout and the media have largely capitulated, depicting the aftermath of the murder of unarmed 18 year-old Michael Brown as rioting, when the real story is the militarized response of the police.

Nixon's Resignation Turns 40

The Man, the Myth

Today marks the 40th anniversary of Richard Nixon's resignation, and it remains a day of celebration and happiness in my family and for many people I grew up with. Nixon was a larger than life villain who somehow escaped the punishment he deserved. He seemed destined for "rehabilitation" and nearly made it, before expiring in 1994.

He was an iconic figure, to put it nicely. No words I can think of do justice to Nixon and his legacy quite like Hunter S. Thompson's eulogy, published some 20 years ago. I highly recommend it. A h/t to the good folks at TalkLeft.

Carve Outs, General Releases, and Sloppy Lawyering

I was reading a recent motion this morning by the City of New York to set aside a plaintiff's verdict when I stumbled across a huge boo-boo committed by plaintiff's counsel. Depending on how the arguments play out, the plaintiff may have just given away a $510,000 verdict (plus legal fees that will likely be somewhere in the six figures). If nothing else, it serves as an object lesson for one way to easily avoid possible malpractice. The name of the case or the attorneys is not important (and no, it's not me).

For those of us that represent clients who are likely to have other claims that may or may not already be in suit, it is particularly useful to inquire about a client's roster of potential claims. Not only may it provide some ammo for negotiation purposes, but because allowing your client to sign a general release without some due diligence is, well, let's say it's not a good idea.

Is Change From Within Possible?

In his typically interesting online column today, Len Levitt takes a look at Mayor de Blasio's round-table discussion last week which included participants Al Sharpton, Bill Bratton, and others. Levitt points out that de Blasio sat Sharpton to his immediate left and Bratton on his right, with various mayoral aides and others sitting further away. Symbolically, Levitt notes, the Mayor was presenting Sharpton as Bratton's equal, and greater in importance than the rest of the staffers. So de Blasio was wholly unprepared when Sharpton turned his guns on the administration.

The story takes me back to an old debate that's been raging on the left for generations. That is, can the left better effect change from outside the power structure, or must they work to obtain power and the implement change from inside. While I read Levitt's piece as being an attack on de Blasio's political naivete with respect to Sharpton, and his need to wise up and wise up fast, it suggested to me that de Blasio is struggling with the idea of actually being in charge.

Karmic Update

A quick update: back on June 13, I noted that the Massachussets law firm of Connolly, Geaney, Ablitt & Willard was on the verge of going under. It's was notable only because the firm which had made its living foreclosing on people was being kicked out of its office after it had been foreclosed on. It now appears that the firm is done. (See Above the Law and Mass Lawyers Weekly [paywall]).

I don't get pleasure from people's suffering, even those who seek to profit from other's people's misfortune. And I am particularly sensitive to the hardships that the firm's failure would cause its staff. Except that here, according to reports, management was already firing people, not paying its taxes, and failing to pay the firm's health care premiums. Sometimes you get what you deserve.

A Chokehold Killed Eric Garner

News outlets tonight are announcing that New York's Medical Examiner has determined that Eric Garner died from neck and check compression, although his obesity, asthma, and high blood pressure were contributing factors. (Here, for example). In other words, Garner was killed by police officers. So where do we go from here?

Stop and Frisk: Nearing The End

Slowly but surely the Stop and Frisk litigation that dominated legal and civil rights headlines for the past year appears to be nearly done. District Judge Analisa Torres flatly rejected the police unions' attempts to inject themselves into the litigation. All that remains is for the unions to appeal, as they have promised to do. There is no doubt that they will follow through, but the far wiser course would be one of reconciliation.