Laquan McDonald: Same Old, Same Old

Cook County Coroner's illustration of Laquan McDonald's wounds
 -- courtesy of the New Republic

When I began this blog, I was enthusiastic about the forum and set aside the energy and time to write. As the months passed, I have found it increasingly difficult to talk about the intersecting issues of civil rights, politics, and law enforcement. That is to say, it feels as though we are watching history repeat itself in increasingly short cycles with little change in state behavior or it's response to the evidence of misconduct. When the aggrieved communities express their anger and concern, the media responds by questioning whether these protests are only making it harder to effectively police crime and suggesting that these incidents are the outliers, always the outliers. By the time I have begun to wrap my head around an event, we are already on to the next, markedly similar travesty. Writing posts discussing police violence and the blue wall of silence that supports it often has a pointless feel to it, given the police shooting and cover up that is inevitably right around the corner.

The Right to Remain Silent in a Civil Context

That refusing to respond to questions does not justify an arrest for obstruction of governmental administration (OGA) has just been affirmed by the Second Circuit Court of Appeals. It's sort of an important decision. Many of the routine civil rights cases that I see involve the issue of respect and authority. Simple exchanges rapidly escalate and lost all semblance of proportionality to everyone's detriment. People are often needlessly hurt and arrested, and preconceptions are reinforced all the way around.

A classic example is when a police officer demands identification or an explanation for why the person is somewhere or where he is going to or coming from. These are the sorts of inquiries that are almost never made of certain people or in certain neighborhoods. Put differently, officers then to behave this way in poor areas populated by communities of color, who are sensitive to such race-based policing. When the person declines, the officer sees it as a sign of disrespect to him and his badge, and usually goes all in. As both sides dig in their heels it becomes clear that the only way the officer is getting the info is by forcibly taking it, but to do so without assistance would be foolish, so he radios for help. Moments later, backed up by another half-dozen officers, a forcible takedown is made. The civilian does not fight, but stiffens up, perhaps instinctively, perhaps out of anger, and more force is applied. Words are exchanged and batons or asps might be swung, pepper spray may be deployed. Crowds gather, filming and loudly complaining. The officers get nervous and call for even more backup. The original civilian is arrested because, if nothing else, the police now need to create a narrative to justify and explain all their conduct. The cold truth will usually not suffice, so it is embellished and ginned up until there are enough facts to justify the stop and the subsequent use of force. In cases that make it to lawyers like me, the charges are dismissed and litigation follows.

Expungement on the Horizon?

United States District Judge Raymond J. Dearie, a former prosecutor who has never been mistaken for a liberal jurist, has publicly called on the federal criminal justice system to find a way to allow for the expungement of criminal convictions for persons convicted of certain crimes. It is an important idea that is worthy of discussion, both for the benefit of those convicted and society as a whole.

As the NYLJ reported today, Judge Dearie recently issued a decision in Stephenson v. United States, 10 MC 712 (RJD), in which he addressed a request for expungement from Dawn Stephenson, who Judge Dearie had sentenced in 1993 to one day of imprisonment, several months of home confinement, and four years of supervised release following her plea to bank fraud. The government opposed the petition, arguing that the circumstances were not sufficiently extreme to warrant the relief.

Unfortunately for Ms. Stephenson, the court agreed that the current law compelled the denial of the petition, although it left the door open for renewal down the road. This was undoubtedly a tough call for Judge Dearie, as he made clear:

This notion of forgiveness underlies the promise we so extend to individuals making their way through our criminal justice system: if you 'pay your debt to society' -- whether through a sentence or a fine -- you are afforded a second chance in life. Lately, this has been a promise left largely unfulfilled. Criminal records are remarkably public and permanent, and their effects are pernicious. A criminal sentence too often becomes “a lifetime of unemployment.”  It is time for a change. . . .As a judiciary, it may be time to revisit the standard for granting expungement and consider, based on what we know now, whether expungement should be limited to only the most “exceptional” cases.

This is obviously correct. A person convicted of a crime serves his sentence, and often suffers all sort of concomitant penalties, such as the loss of familial relationships, employment opportunities, and so forth. These are the sorts of consequences that follow criminal convictions, and ought to provide a disincentive for criminal conduct. But once that sentence is served and the fines are paid, the offender should have an opportunity to restart his life. Not simply out of basic fairness, but also because it is in our best interest.  There are myriad of reasons why society benefits when our former convicts become gainfully employed, including reduced incarceration costs, lowered crime rates, and healthier and stronger families and local communities.

Redemption and rehabilitation may be an anathema to the law, order, and continuous retribution crowd, but people who screw up and pay the price deserve the opportunity to reclaim their lives. Not necessarily for all offenders, but for those in certain categories, this is surely a fair suggestion.

Practice Tip: Beware District Court Bundling Rules

For federal practitioners there are three sets of rules that must be adhered to. These are, generally: the Federal Rules of Procedure (appellate, civil, or criminal, depending on your case); the local district rules; and district judges' individual rules. Unfortunately, they are occasionally in conflict and a failure to properly read and adjust thereto can cause real and lasting harm to your client.

Case in point: many federal judges where I practice (the EDNY and SDNY) require that attorneys "bundle" their motions. What this means is that the motion is not to be filed until after it is fully briefed and served. It works like this: a briefing schedule is issued by the court pursuant to which the movant serves its motion and accompanying papers but does not docket the motion on ECF or otherwise file it. The opposing party then serves its opposition, with the movant to then serve any further reply. It is only then that the motion is actually filed. Some judges require the moving party to file each of the parties' papers, while others expect each party to file its own, but either way, the motion is not filed until long after motion papers are drafted and served.

Parenthetically, I have no idea why some judges do this. The only benefit I see is that it keeps the motion practice entries grouped together on the electronic docket. But since most judges also require that the parties send courtesy copies to chambers, the whole thing is pretty pointless.

Anyway, one scenario that has arisen concerns the interplay between the Federal Rules of Appellate Procedure, which require that a notice of appeal in a civil action be filed within 30 days of the final judgment, and rules governing the filing of a motion for reconsideration, which would toll the deadline for filing a notice of appeal.

Protecting Prosecutors

Several regional sections of New York's Commission on Statewide Attorney Discipline met recently to discuss, in part, whether an independent Commission on Prosecutorial Misconduct should be formed to address the growing public recognition that some prosecutors (and, more importantly, prosecutorial offices) were cutting constitutional corners to gain convictions, with disastrous consequences. (NYLJ with pay wall here). It was a collision of sorts between competing interests and voices. It's not hard to guess who won.

From one direction came the proponents who saw such behavior as a real threat to due process and public confidence in the criminal justice system. Treating such misconduct as serious was a critical step towards eliminating it, and the first step would be the public recognition afforded by the creation of a state-wide commission. Barreling down the main avenue at full tilt from the opposite direction was the system's constant desire to insulate itself from public attack, to limit the legal repercussions to private scoldings whenever possible. These opponents, claiming budgetary concerns, joined hands with the bar associations and those who believed it best to protect state actors generally from the harsh light of day, and to ensure the safety and sanctity of the status quo.

Just like any collision between a large truck steaming downhill without brakes and a small fiat sitting sideways in the intersection, the public's interest in a criminal justice system that requires prosecutors to exhibit respect for basic constitutional principles was promptly obliterated.

Instead, the Commission recommended that prosecutorial misconduct cases be referred to one of the four existing disciplinary panels already in place for complaints about lawyer's conduct generally. These four committees are divided geographically across New York. For instance, claims against lawyers in New York City and the surrounding counties are referred to either the First or Second Department, whereas lawyers in the western or northern parts of the state are governed by the Third or Fourth Departments. An overseer would be appointed to make some passing attempt at equalizing the approach and treatment of the four committees. In other words, gross overstepping might be subject to punishment, but only after a long, drawn out process that made clear that the miscreant under the microscope was but a rare, rare specimen.

It's a shameful exercise to maintain business as usual and protect the county prosecutors from embarrassment. As a general matter, it's a well-accepted fact that the disciplinary process varies widely from one committee to the next. What might land you in hot water one place will be promptly waved off elsewhere. Having a misconduct czar might help somewhat, but only in terms of punishing the occasional scapegoat. That is to say, once in a while somebody will blatantly withhold Brady material or something similar, valuing the potential conviction over the prosecutor's overarching duty to uphold the constitution and to do justice. That prosecutor runs the risk of being trotted out for a public hanging if only to prove that the system works. The larger problems, county prosecutors who had no respect for their duties or the law, politicians who valued the press release over all else, and the like, will remain untouchable, barring an avalanche of bad clippings with a stench so overpowering it cannot be ignored -- think, Charles Hynes. In other words, business as usual.

Bratton's One-Time Apology Tour

Yesterday members of the NYPD saw a black man they thought was a suspect in an identity theft crime, rushed him, grabbed him, and slammed him to the sidewalk. He was cuffed and held on the scene for about 15 minutes. Nothing unusual there.

Except it turns out that they had the wrong guy. Still nothing unusual. Except that the black man in question was retired professional tennis player James Blake, who at the height of his career was ranked fourth in the world. (NY Daily News). Now that is a little different.

What was really different, however, was the NYPD's response today. The officer responsible was summarily placed on modified duty, and Commissioner Bratton actually issued a personal public apology, saying, in part, that the incident "should not have happened." Video available on ESPN's site shows Bratton giving his department a public spanking.

Somewhere somebody's saying, hey that's some progress. No it's not. This sort of thing happens every day throughout the City. Officers manhandle people, treat them without respect, and strip them of their dignity, even when the people they're abusing haven't done anything wrong or the behavior is grossly excessive to the situation. Let me say that in my experience, the NYPD never apologizes. I don't mean they usually won't, I mean they never will. Every now and then individual officers will whisper an apology in private, though they would deny it if asked. Even when the City is forced to pay out hundreds of thousands of dollars, millions even, to settle a lawsuit, they will not do so unless they can continue to deny responsibility.

So why now? Because Blake is a well known, articulate, former athlete with plenty of access to sympathetic friends in the media. He is a potentially damning testimonial to the NYPD's baser instincts. It's not a question of money; I'd actually be surprised if he files suit. The only currency here is a public apology and Bratton smartly decided to pay sooner rather than later.

I have no problem with the apology itself. But let's be clear: it's a one-time event, offered without sincerity or any remote possibility of subsequent remedial action. It's a meaningless gesture that will likely let the NYPD off the hook way too easily.

The Non-Story that is Kim Davis

Some arguments are so facially silly, so intellectually vacuous, that it's hard to understand how's there's an argument in the first place. Enter Kim Davis, the Kentucky county clerk who believes laws she says conflict with her religious views should not apply to her. A ridiculous position unworthy of serious discussion? You bet.

Yet, here we are; debating whether Kim Davis's supposedly deeply held religious beliefs vests in her the discretionary authority to decide which court orders ratified by the Supreme Court will be enforced, and which won't. What about a constitutional obligation that expressly requires her to issue marriage licenses to couples of legal age regardless of gender? No, that's for heathens heading to the lake of fire and she's not having it.

The argument is plainly baseless. If Ms. Davis feels so strongly about same-sex marriage that she cannot bring herself to issue gay couples marriage licenses even though issuing marriage licenses is part of her job, she should get a new job. What's next for the homophobic clerk? Refusing to enter real property deeds for gay couples? That's absurd, do your job or get a new job.

We are, as nobody can dispute, a nation of laws. We have rules in place that govern our conduct, and a system for resolving conflicts over what those laws mean and how to apply them. Imagine if we were to agree that we need not follow these laws if we can articulate some subjective faith-based reason. Let's go one step further and assume that the religion in question is any religion other than Christianity.

Bill Lewinski and the Always Justifiable Police Shooting

Photo courtesy of PoliceMag.com

The New York Times has recently run a profile of William J. Lewinski, the psychology professor law enforcement turns to when it needs a justifier for the unjustifiable. It is an interesting look at how police defendants pitch shoot-first advocacy as neutral science. Fleeing man shot in the back? It's a good shoot. Unarmed man shot in  car? That's also a good shoot. Unarmed man with his hand in his pocket shot as he complies with order to remove hand from pocket? You know that's a good shoot. Officers who change their testimony about how and why they shot? Again, no problem for Lewinski, whose pseudo-scientific approach appears sufficiently malleable to suit any fact pattern.

As Matt Apuzzo succinctly notes in his Times' piece:

His conclusions are consistent: The officer acted appropriately, even when shooting an unarmed person. Even when shooting someone in the back. Even when witness testimony, forensic evidence or video footage contradicts the officer’s story.

Broadly speaking, Lewinski's testimony offers two avenues of escape from seemingly bad shootings. One is what I consider the Rodney King approach. In that case, video evidence showed officers surrounding King, who was lying prone on the ground. The officers repeatedly and viciously struck King again and again. The defense attempted to deconstruct the video; slowing it down until it lost all meaning. Pointing to slight movements (such as King lifting his head or shoulder while lying on the roadway) that were visible only when the playback was shown at a frame by frame clip, the defense argued that the officers were reacting reasonably to a perceived threat. The jury acquitted.

The NYPD and Fudged Figures

What happens when police officers are both evaluated based on a statistical analysis of criminal activity taking place in their precinct and given primary responsibility for keeping track of said activity? Give yourself a gold star if you guessed that some officers might play a little fast and loose with the figures.

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It was reported yesterday that NYPD Commissioner Bill Bratton has announced the transfer of the commanding officer of the 40th precinct in the Bronx, along with a lieutenant, eight sergeants, nine officers, and one detective, as a result of under reporting of criminal complaints. This statistical manipulation serves a multitude of purposes, the most obvious of which is to show an artificial decline in the crime rate within the precinct.

Statistics are a critical component of crime fighting in the NYPD, which relies heavily on its CompStat program to track criminal activity throughout the city with great specificity. These analytics allow the NYPD to adjust its tactics and personnel deployment in sync with the activity it is seeking to suppress. Speaking generally, analytics are a useful tool for gaining insight into whatever business you are in, and policing is no exception, providing of course that your statistics are accurate.

As a side note, such a heavy emphasis on statistics comes with a price. The NYPD, understandably, wants its officers to meet certain numerical requirements. Yes, I know the department routinely denies that there are "quotas" but the evidence of required "activity levels" is compelling. By requiring numbers, quality is often sacrificed for quantity. Whether it's patrol officers scrambling to meet their monthly summons and arrest figures or detectives looking for informants to sign up, search warrants to write, or bodies to arrest, the need to create a statistical body of work often pushes officers into making baseless arrests or engaging in related misconduct. 

In this regard, it is not surprising that the NYPD rewards arrest numbers without regard for what happens to those arrested. In many cases -- say, a search warrant execution by a narcotics team -- a small amount of drugs may be found on someone's person, but the officers proceed to arrest everybody in sight. Prosecutors often decline those prosecutions or dismiss the cases shortly thereafter (which sometimes results in civil lawsuits). Such outcomes matter not to the NYPD, which does not distinguish between arrests that lead to felony convictions and those that prosecutors summarily reject without bothering to charge anyone. That is to say, it is the arrest numbers that matter most, not their validity.

All of this means that the bottom line numbers offered up by the NYPD should be treated with no small amount of skepticism. Whether it is the amount of crimes supposedly taking place, or the number of arrests being made, these numbers often lie.

Video of Police Shooting in Gardena Released

In June 2013, in Gardena, California, local police officers shot unarmed brothers Ricardo Diaz Zeferino and Augustin Reynoso as they stood in front of the officers. Zeferino was killed and Reynoso left with a bullet lodged next to his spine. The incident was captured from two different video cameras, which demonstrate the absence of any justifiable basis for the officers' decision to open fire.

As detailed in this story in the L.A. Times, the local district attorney chose not to file charges against the officers, stating that Zeferino was seen reaching for a weapon. A civil lawsuit followed during which the video was released subject to a protective order (meaning that the lawyers could not use it outside the litigation). The plaintiffs' lawyers argued that the video showed a baseless shooting of two unarmed men. Gardena continued to argue that the video showed the officers responding to a man reaching for a weapon in his waistband. Ultimately, Gardena paid $4.7 million.

The L.A. Times, Bloomberg, and the Associated Press, sought the release of the video. Last week United States District Judge Stephen V. Wilson granted that request. Defense attorneys raced to the Court of Appeals for a stay of the order but not fast enough to prevent its release.

This is the video that Gardena did not want the public to see.

Garner Settlement: Good for All Concerned

The family of Eric Garner recently agreed to settle the estate's claims against the City of New York for $5.9 million. What is perhaps most notable about the agreement is that, once again, the deal was brokered on behalf of the City by Comptroller Scott Stringer. Whatever one's thoughts about the dollar amount, it's a good deal for all sides. The biggest beneficiary? Possibly Mayor Bill de Blasio.

The entire City of New York needed this case to be resolved quickly. A protracted legal and public relations battle would have been a disaster and could easily have turned into something very, very nasty. It was important that all sides come together and acknowledge what had happened and make a public showing of contrition. That it happened prior to any actual litigation worked out just perfectly for de Blasio, who must have been dreading this lawsuit.

NYPD Stop and Frisks on the Decline

According to a recent article in the NYLJ, the number of NYPD stop and frisks has been in a steep decline since 2011, when the police logged 685,724 events. By 2014, officers recorded just 46,235 such stops. That the drop off has been dramatic is obvious; the underlying reasons a bit less so, although the newly appointed federal monitor, Peter Zimroth believes it may be the result of uncertainty and a lack of understanding on the part of the officers.

It's easy enough to ascribe that to inadequate training, but that explanation is too facile. The reality is that race is perceived by many officers as a perfectly legitimate reason to suspect criminality is afoot, particularly when we are talking about young black men in certain neighborhoods.

Judges Are People Too

The NY Times yesterday ran a story about how federal judges sitting in the Southern District of New York often seek each other's counsel. First thought: well yeah, of course they do, this isn't news. Second thought: we know so little about how the judicial branch functions that people are surprised to find out that the judges behave like human beings. The simplest take away is that lawyers should remember that how you are seen by one judge can impact on your reputation in front of other judges, including those you have never appeared before.

It's startling to be confronted with the fact that complete strangers have already formed opinions about you. It's particularly off-putting when the opinions aren't favorable. For instance, many, many years ago, when I was a teenager, I was at a party when a girl asked me my name. When I told her she said, "Ohhh, you're Michael Lumer," and walked away. Whatever it was that she had heard, it sure wasn't good.

Freddie Gray: the Beat Goes On

I drafted the following post a few weeks ago. Work commitments and other matters commandeered my schedule, and I never got around to pressing the publish button. In this short interlude, "Baltimore" has faded as a national story, which sort of makes my point.

A few weeks ago a friend asked if I was going to write about the shooting of Walter Scott. My work load since March has been really heavy, but I made a note that I should. Some time passed and then Freddie Gray was killed. By the time I revisited my notes a few weeks later, Freddie Gray had been killed and I could barely remember who Walter Scott was. Which is my primary thought in this particular post. In the period that has passed since this post was drafted, the focus has shifted from the death of Freddie Gray to the prosecution of the officers, and the rather idiotic suggestion that the local prosecutor recuse herself because her decision to seek a conviction means she's biased. There will be more to follow. There's just too much to say, too much going on, to write just one passing post about this Freddie Gray moment.

Garner GJ Appeal Expedited

45 Monroe Place, Brooklyn, NY
NYS Appellate Division for the Second Department

The New York Appellate Division has agreed to expedite the appeal from a lower court's decision rejecting the request to unseal grand jury records in the Eric Garner case. Various parties, including the Legal Aid Society, New York Civil Liberties Union, NAACP and New York City Public Advocate Letitia James, had sought a court order to force Staten Island District Attorney Daniel Donovan to unseal and publish grand jury transcripts and exhibits relating to the inquiry into the death of Eric Garner following NYPD Officer David Pantoleo's deadly use of a choke hold. 

Ultimately, and not too surprisingly, particularly given the Staten Island venue, the GJ declined to indict Pantoleo. Given the widely held belief in the legal community that a GJ's decision not to indict in cases such as these is usually the result of a rigged or deliberately flawed presentation (see, People v. Ham Sandwich), the demand to inspect the GJ records was to be expected. The court's initial ruling against the petitioning parties was but the first salvo.

Under the expedited schedule, the opening briefs are due by May 5. Donovan's opposing brief is due by May 26, and any reply briefs by June 2.  Presumably oral argument and a subsequent written decision would follow shortly. Regardless of the outcome, it would not be surprising to see the case eventually land on the Court of Appeals' docket.

More to come, once the briefs are filed.

FBI Admits Decades of Flawed Evidence

According to the Washington Post, the government has admitted that, for years and years on end, every FBI examiner who testified in criminal trials over a twenty-years period prior to 2000 gave flawed testimony that favored the prosecution. It is a staggering admission.

The gist of the testimony concerned the use of hair follicle examinations to link suspects to forensic evidence, CSI-style. Apparently, despite the courts' universal acceptance that the offered testimony was sufficiently grounded in science as to be admissible, with the understanding that jurors would reflexively accept such testimony as true given its source, said evidence should not have been allowed into evidence. Meaning: large numbers of criminal convictions were obtained, at least in part, through the use of scientific evidence that was not, in actuality, as reliable as the testifying technician claimed it to be in order to persuade the courts to allow it into evidence.

Specifically, the Post states,

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far . .  . .The cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison . . . 

To say this is perhaps the single largest forensic scandal in criminal prosecutions is probably an understatement. What this means is that for decades, the federal government affirmatively propagated junk science in order to obtain convictions, and that the courts, the supposed gatekeepers entrusted to ensure that scientific-based evidence is sufficiently reliable to be put before a jury, failed miserably at their task.

Marty Stroud, Glenn Ford, and the Machinery of Death

Photo by Douglas Collier/The Shreveport Times

The Shreveport Times recently published a written apology from former prosecutor Marty Stroud to Glenn Ford. Stroud's words are powerful and moving, and I urge you to read the piece.

Stroud had successfully obtained the death penalty for Ford in 1984 for a murder in Shreveport, Louisiana. Ford spent 33 years in prison, the vast majority of which was spent on death row, before he was exonerated. He may now be free, but justice has not been done, and time is running out.

Louisiana, much to Stroud's surprise, but probably nobody else's, has been staunchly resisting paying Ford any sort of compensation for the years he spent in their state penitentiaries. Sadly, Ford now has stage four lung cancer; a diagnosis that speaks for itself.

I won't bore you with the details of the wrongful conviction or how Ford was finally cleared, except to point out that Ford, a black man, was convicted by an all-white jury, and defended by attorneys who did not practice criminal law and had never tried a case before a jury. The remaining history can be found online or in this article in the Washington Post. The far more interesting part of this story is Stroud's open apology to Ford, which is bundled together with both express and implicit criticisms of our system of justice. The apology is set out, with a video of Stroud's commentary, in the Shreveport Times' article.

Rikers Guard Pimps, Deals, and Publishes

Courtesy of the
New York Daily News

NYC Corrections Officer Gary Heyward worked Rikers Island for a number of years. While there, he smuggled in tobacco, liquor, cell phones and drugs, provided muscle for pay back beatings of inmates, and pimped out three female officers, "copstitutes," to inmates and senior management. Or so he says in his just published memoir, "Corruption Officer."

The Daily News profiles the sordid and depressing story of a corrupt C.O. who helped make the Rikers experience all the more miserable. The article provides plenty of salacious details that I won't bother to repeat. Not surprisingly, the DOC says he's exaggerating his stories to sell books. Humorously, they also suggest he's tarnishing the department's good reputation.

Heyward was caught after an accomplice rolled over on him, and spent nearly two years in a state prison before he was supposedly, inconceivably, permitted return to work for the City in an undisclosed position. In what is probably the most outrageous and seemingly unbelievable part of his story, Heyward not only continues to work for the City, but gets to keep his pension too.

These latter claims are easily refutable, if false. The City's silence seems to suggest that truth is indeed stranger than fiction. What nobody can reasonably deny is that Rikers has long been rife with corruption and violence. The only open questions are ones of degree and whether this system can be salvaged.

NYPD editing Bell, Garner, Diallo Wikipedia pages

Courtesy of en.wikipedia.com

Apparently the NYPD is tasking employees with editing Wikipedia pages concerning the killing of Sean Bell, Eric Garner, and Amadou Diallo. According to an article by Capital, edits to these pages have been traced back to computers operating on the NYPD's network at One Police Plaza in NYC. The NYPD is supposedly looking into it, although, if the info concerning the network domain is accurate, then it's pretty cut and dried.

I am assuming that the allegations are true. Not so I can wag my finger and shake my head in consternation. At least not this time. There's nothing particularly shocking about a city agency trying to control the public narrative. Manipulating Wikipedia pages -- which readers ought to know often offer questionably accurate factual information -- is old hat. There's really no qualitative difference between massaging the adjectives and phrasing in Wiki entries for critical events in the NYPD's past, and the attempts by the NYPD and the City, through their supporters and various talking heads to shape the message back when these killings occurred. 

NYPD Quotas and the Blue Wall of Silence

Last week, P.O. Craig Matthews' case against the NYPD alleging retaliation for his complaining about the quota system (which the NYPD won't admit to), was reinstated by the United States Court of Appeals for the Second Circuit. Now, according to the NY Post in two different articles (here and here), a dozen plaintiffs have come forward in a lawsuit against the NYPD alleging that the department is enforcing a quota system for arrests and criminal summonses. These plaintiffs are black and Latino officers who are alleging that the policy is racially driven as the targeted communities are predominantly black and Latino, and these officers are treated more harshly than their white colleagues when they don't meet their quotas.

The safe thing to say is that these are still merely allegations, yada yada yada. But they follow multiple lawsuits filed by officers throughout the City of New York that all generally allege that officers are told there are baseline numbers they must make and woe unto those who fall short. There's far too much smoke here to believe there's no fire crackling underneath.

The 2d Circuit's Busy Week, Pt. 3

The third civil rights decision issued by the Second Circuit Court of Appeals last week promptly cost the City of New York more than $18 million. It also visited the issue of whether a convicted person seeking exculpatory evidence under state law can pursue a claim for damages under §1983 when a local government's policies frustrate or otherwise prevent the very access promised by state law, and concluded that, at least here, such a cause of action may stand.


In 1985, Alan Newtown was convicted of the brutal rape and robbery of a woman in the Bronx. The post-conviction motion practice and events are detailed in the decision below. The condensed version is that in the mid-1990s, Newton sought the DNA evidence for testing, but it was reported lost by the NYPD and the Bronx D.A.'s office. It was not until 10 years later that it turned up. DNA testing conducted in 2006 conclusively established that the DNA from the rape kit did not match Newton's, and, Newton's conviction was promptly vacated. By then, he had spent more than 20 years in prison.

The 2d Circuit's Busy Week, Pt. 2

Having just reversed itself in the face of an en banc rehearing in Garcia v. John and Jane Does, the Second Circuit next addressed the case of Matthews v. City of New York. This interesting case concerns a NYPD officer's claims that his bosses punished him for complaining about a precinct-wide quota policy. Not too surprisingly, management rewarded Matthews for voicing his concerns by making his life difficult. He sued on First Amendment grounds. The district court dismissed, finding that he was acting as a public employee when he complained, rather than simply as a citizen. The Court of Appeals reversed. It's a good decision that puts a bit of a dent in the controlling Supreme Court case, Garcetti v. Ceballos.

The 2d Circuit's Busy Week, Pt. 1.

The Second Circuit issued three opinions this week concerning various constitutional claims. If you want a detailed dissection of these issues you have come to the wrong place. If it's a superficial overview you want, with links to the decisions, read on.

First up, the Court throws out a false arrest suit brought by Occupy Wall Street protestors after they were arrested in October 2011. This opinion concerns the Court's reversal of it's own prior decision affirming the denial of qualified immunity NYPD officers for having arrested hundreds of Occupy Wall Street Demonstrators in 2011. Let me simplify: in Garcia v. John and Jane Does, the plaintiffs were OWS demonstrators who marched onto the roadway of the Brooklyn Bridge. The plaintiffs alleged, in part, that the officers had effectively invited the marchers to enter the roadway of the bridge (conduct that would otherwise be unlawful), then blocked off their exit from the roadway, and arrested them. The case was brought in the Southern District of New York before Judge Jed Rakoff.

Ginning Up the Base

Courtesy of Huffington Post

I have always loved the NY Post. Not because of it's great writing or enlightening reporting. And no, not for the gossip, although it's certainly salacious. Rather, I am a long-time fan of the paper's headlines. Eschewing any sense of "integrity," the Post abandons any pretense that it exists for any reason other than to sell papers and agendas. Towards that end, they have some great headlines.

Their stories often follow suit. For instance, on January 29, 2015, the NY Post ran a story about Ruhim Ullah, the machete man, if you will. According to the Post, Ullah menaced a police officer with a machete, causing the officer to shoot him in self-defense. Ullah then sued the officer for shooting him, and ultimately settled for $5,000. The author of the article, Selim Algar, wrote that Ullah's own lawyer had admitted the shooting was justified; a statement that made the already seemingly ridiculous lawsuit even more absurd. The Post's story triggered a mini-fire storm of criticism from police officials, and gave Mayor de Blasio just the opportunity he was seeking to show the NYPD what a good friend he was to the boys in blue.

The thing is, the Post story -- which concludes by juxtaposing the Ullah nuisance value settlement with settlements for $98 million to resolve a longstanding class-action discrimination case brought by minority FDNY applicants, for $41 million for the Central Park Five, and for $18 million to protesters arrested following the 2004 Republican National Convention, apparently to suggest that all of these settlements are similarly frivolous -- is fundamentally inaccurate.

Courtesy of FAIR

According to Fairness and Accuracy in Reporting ("FAIR"), contrary to the Post article, Ullah's lawyer denied ever saying that he thought the shooting was justified, stating that the Algar appeared to have simply made up the quote. Equally important, Ullah's claim, seemingly backed by some friendly witnesses, was that he had put down the knife prior to the shooting. The FAIR piece also notes that "the Post's Algar . . . has a dicey record on embellishing key facts." I am not arguing that this case was one that should have been brought. I don't know enough about the case to have an opinion. But one thing is clear: the facts were significantly different than what the Post presented, and that's before getting to the apparently fabricated quote from Ullah's lawyer.

I was in court with a supervising attorney from the City's Special Federal Litigation Unit shortly after the story broke (and after Mayor de Blasio made a speech suggesting that the City's lawyers had long followed a policy of paying out absurd amounts on frivolous lawsuits, much to the consternation of the lawyers he had just maligned). This lawyer made clear that while the machete case was eminently defensible, there was definitely more to it than what the Post had suggested, and that the settlement had made sense. Never one to allow subtle niceties to interfere with political expediency, de Blasio seized on the falsified machete story to make some hay in his efforts to woo back his officers.

That the story was inaccurate in a meaningful way is not surprising. The Post is more political cartoon than newspaper, and ought to be read as such. It's too bad that more self-styled serious papers and news outlets didn't pick up on FAIR's article or call the Post on its errors. Still, I guess that's entertainment.

Be Nice: the NYPD Gets Transcendent

The NYPD has instituted a new "be nice" retraining program. According to the NY Post, the City has started a mandatory three-day retraining program for 22,000 police officers in the wake of the Eric Garner killing, designed to teach officers how to deal with angry civilians. Apparently, the original course was so stultifyingly dull that officers were falling asleep. In an attempt to juice it up, the NYPD is now showing inspirational clips, such as the following two minute bit from the classic Patrick Swayze film, Roadhouse.



To be fair, the story did run in the Post; a daily paper not exactly renowned for its dedication to accuracy or objectivity. Politically speaking, the paper tends to be a big supporter of the rank and file, and is quick to denigrate Mayor de Blasio whenever the opportunity presents itself. Thus, the story may well be true, but then again it may not.

What is certainly true, as I've learned over the years in deposing police officers, is that the NYPD already teaches officers how to handle an unhappy public. For instance, there's already a course at the academy for the probie cadets called "verbal judo." Certainly this makes sense, as police officers have to deal with the public constantly, and really ought to have a basic understanding of how to avoid escalating confrontations and defuse potentially combustible conflicts.

In other words, it would really be a shame if the NYPD's already-existing training was inadequate, but it's even worse if this is really the intended cure.

$7.5 million to Another Wrongly Convicted Man in NY

More Brady violations, injuries, and acknowledgements. Dewey Bozella spent 26 years in prison for murdering 92 year-old Emma Crasper. It was a brutal murder, one in which a jury's finding of guilt beyond a reasonable doubt ought to carry significant weight. Still, in 2009, having acknowledged that criminal conduct "simply does not get more repugnant nor abhorrent than this [murder]," New York State Justice James T. Rooney vacated Bozella's conviction based on the prosecution having withheld various items of Brady material. On February 10, 2015, the Dutchess County legislature approved the settlement of Bozella's subsequent civil suit for $7.5 million dollars. Good for Dewey, but it comes more than two decades late.

The facts of the underlying criminal case are a bit lengthy to describe here. It is enough to say that the only evidence against the then 18 year-old Bozella was the testimony of two long-time criminals. These statements were contradicted by the two witnesses' prior statements, which they recanted after being offered a bevy of benefits, and were further controverted by other witnesses and the forensic evidence.

What Dewey Bozella was not provided with by prosecutors were an assortment of different statements by neighbors that would tend to support his claims of innocence and undercut the stories told by defendants' key witnesses, evidence further establishing that the murderer was a man named Donald Wise, and a police report concerning other, similar crimes that had taken place in the same neighborhood. All of this evidence would have helped Bozella at trial, particularly since the prosecution's case was more than a little weak, to put it nicely.

Yet, the prosecution did not produce it and Bozella was convicted. 26 years later he was freed, and some four years later, Dutchess County has agreed to pay restitution to settle his case, Dewey v. County of Dutchess, 10 CV 4917, which was brought in the United States District Court for the Southern District. While it's nice of the powers that be to tacitly acknowledge the harm that was done, nothing will give Dewey Bozella his life back.

This case is but one more reminder as to why Brady disclosures are so important, why it really matters when prosecutors and cops fail in their obligations, and the overwhelming likelihood that there are many, many more Dewey Bozellas than we will ever know of.

A Further Epidemic of Prosecutorial Misconduct

It was not that long ago that Judge Alex Kozinski, of the U.S. Court of Appeals for the Ninth Circuit, opined that there was an "epidemic" of Brady violations (referring to a failure by prosecutors to turn over exculpatory evidence), and suggested that this was a systemic problem that was further enabled by the chronic failure of judges to punish the offending prosecutors.

IPicking up where he had left off, Judge Kozinski, joined by two colleagues in an argument in Baca v. Adams a few weeks ago, excoriated California state prosecutors for providing false testimony in a murder for hire case. As Judge Kozinski stated, the prosecutors "got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way."

The L.A. Times has an excellent article on the case and the Court's comments. The video of the argument follows below. The state's attorney, Kevin Vienna, begins his argument 15:55 minutes into the video. The slow, steady attack begins almost immediately, and picks up steam steadily.

Seeking to hold prosecutors liable for such abuses is probably a lost cause, but these events underscore both the prevalence of this misconduct, and the lack of consequences for the guilty parties. As ought to be self-evident, when prosecutors are allowed to bend constitutional laws and prohibitions in the pursuit of convictions, it inevitably results in the conviction and imprisonment of innocent people, and substantial and lasting injury to the basic principles of fairness and due process that we like to pretend underlie our criminal justice system.

Non-Accountability, or Why Things Never Change

In mid-January, a jury in Brooklyn's Supreme Court returned a verdict in favor of Christopher Graham in the amount of $3.95 million. The number ought to rise about $4 million once legal fees and costs are considered. According to the NY Daily News, Graham, a Chaplain with the State Department of Corrections alleged that he was assaulted by police when they responded to a call at his apartment. He claimed that the officers deliberately twisted his leg until it broke, and then beat him some more, pulling his dreadlocks from his head, slamming him to the floor, and standing on his face and head. Graham also noted that the officers did not know what he did for a living until after the fact.

The Brooklyn jury deliberated for just 50 minutes before finding the officers and the City liable. For those of you unfamiliar with jury turnaround times, that is fast. It means that there was no doubt whatsoever in the jury's mind that the officers had done just what Graham said they did. 

What struck me when I read the News article was not simply that the primary offender -- an officer named Paul Aparo -- had a bit of a history with NYPD's IAB. Rather, it was this comment by NYPD Deputy Chief Kim Royster:

We review, in a variety of ways, all allegations of officer misconduct. A [verdict in] a civil case does not constitute a finding or even evidence that an officer has engaged in any misconduct.

Wow. Yes, Royster is technically correct that the civil jury's verdict is not an exact substitute for a departmental hearing. But that begs the question as to why there was no departmental hearing in the first place.

Here, a police officer is accused of deliberately twisting and forcibly breaking a man's tibia and fibia, resulting in two surgeries and post-traumatic arthritis, all without any justification (his defense sought to blame either Graham or Graham's girlfriend for causing the injuries). This is precisely the sort of gross misconduct that the NYPD ought to be interested in preventing, so surely they would have thoroughly investigated Graham's claims immediately.

Sadly, as is usually the case, the NYPD -- meaning the City, which knows it will be responsible for paying out to compensate the victims of police misconduct -- made no real effort to find out if Aparo and his colleagues engaged in this conduct. The NYPD then proceeds to dismiss the verdict, as though it ought to carry no weight and is unworthy of consideration. In other words, the NYPD stands by its man, regardless of the jury's verdict, regardless of the evidence, regardless, regardless, regardless.

This happens time and again. Officers misbehave. Badly. The City makes no effort to corroborate the claims. Instead, they deny and defend. Juries return verdicts finding that the plaintiffs have proven their allegations, and the City still does nothing.

The message to those cops that misbehave could not be clearer: there is no penalty for using excessive force, there is no penalty for arresting people without probable cause, there is no penalty for lying to prosecutors and courts, there is no penalty for deliberately violating the constitution. And if a jury find yous civilly liable? No problem, the City will pay the tab.

To face any real negative consequence, the officer would have to be criminally charged and convicted, and we know how unlikely that is.

Parenthetically, just to make a point, a couple of years I had a civil case following an arrest of my client where he spent several days at Rikers Island. During a later suppression hearing, the officers admitted there that they had lied to the grand jury and prosecutor, resulting in the ultimate dismissal of the criminal case. Even though there was no dispute that the officers had committed perjury, a fact now known to the prosecutors as well, no criminal charges were sought, and there were no consequences to the officers, even after the City paid my client. In other words, even in a perfect storm, criminal prosecution is unlikely. Just ask Eric Garner's family.

Every year, NYC releases figures showing how many millions of dollars were paid out to settle police misconduct cases. The City would like you to believe it's because us shysters, us shameless ambulance chasers, are bleeding New York dry. In actuality, the source of the City's woes is the ongoing misconduct itself. If the City wants to stop paying out such large amounts of money in compensation for their officers' misconduct, maybe New York ought to focus on its employees' behavior, rather than the litigation that such deliberate, unconstitutional behavior brings about. Just a thought.

NYC's Mayor's Getting Frivolous

NYC Mayor Bill de Blasio has increasingly given the impression that he is prone to simplified political expediency. You know, that he may be the kind of pol who guesses what people want to hear, and then says it, without regard for accuracy, honesty, or commitment . Case in point: de Blasio's "new" get tough policy on civil rights litigation. That it may be new to him does not make it new. Particularly when it was already in place.

Following newspaper accounts of a decision by the City of New York to pay Rahim Ullah $5,000 because the police shot him after he threatened the officers with a machete, City Hall announced it will add 30 lawyers and 10 paralegals to the Law Department for the sole purpose of litigating "frivilous" police cases to trial. This, de Blasio claims, is a groundbreaking and novel approach to such lawsuits. At first blush, this might seem to be a purely political act, one de Blasio undertook for no purpose other than to justify a press conference where he can give a "I stand up for the NYPD" speech. It might also appear to be a load of crap that creates more problems than it solves. If you thought these things, you'd be right.

Mind Your Ps and Qs

The United States Court of Appeals for the Second Circuit recently ruled that the documents we attorneys sign will be interpreted based on their plain meaning, even if it's plain we didn't mean what we wrote. The case has nothing to do with criminal defense or civil rights litigation, but it serves as a useful reminder to attorneys of all sizes and stripes to pay attention to the details.

The short version? Attorneys filing papers that they thought were terminating a lease agreement, deliberately but mistakenly included a document that terminated an unrelated $1.5 billion dollar deal. The bankruptcy court said, no problem, you didn't mean it. The Second Circuit, however, said: you read the document and you then filed the document, so you are stuck with the consequences.

For those that care, the slightly longer version can be found in In Re Motors Liquidation Company, 13-2187, and the details are as follows: during the 2000s, General Motors had entered into various lending agreements with JP Morgan. In 2008, GM closed out a lease agreement, and instructed it's counsel at Mayer Brown to file the proper termination statements.  The partner at Mayer Brown delegated an associate the task of identifying GM's prior UCC filing statements relating to the lease. The associate found three such filings, and prepared termination statements for each one. The problem? The first two were for the lease, the third was for an entirely separate $1.5 billion loan secured by specific GM assets.

The associate drafted the papers, and they were sent to various attorneys and senior folks at GM and JP Morgan, all of whom signed off on the proposed filing. None of these people realized that by filing these documents, GM would be terminating it's initial filing statement concerning the $1.5 billion loan. 

This was a colossel mistake, to put it mildly. By all accounts, neither GM nor JM Morgan intended to terminate the loan or untether the identified assets that secured the loan. But, these sophisticated parties, through their highly trained counsel, drafted documents that expressly and plainly did just that. These professionals reviewed these documents and then executed and published them. In other words, they plainly meant to execute and publish these termination statements, which contained language they expressly approved.

A SDNY Bankruptcy Court determined that the parties should be forgiven for their mistake, because they did not intend to terminate the filing of the $1.5b secured loan statement. The unsecured creditors, who suddenly realized that there was another $1.5b that might be available to them, appealed to the Second Circuit, which certified the matter to the Delaware high court. Delaware, in turn, ruled, "If parties could be relieved from the legal consequences of their mistaken filings, they would have little incentive to ensure the accuracy of the information contained in their UCC filings."

Based on this logical bit of reasoning, the Second Circuit opined, that "It is clear that although JPMorgan never intended to terminate the Main Term Loan UCC-1, it authorized the filing of a UCC-3 termination that had that effect. . . .Nothing more is needed."

Now this has nothing to do with any area of law in which I practice or claim to have more than a slight understanding. But, as a lawyer who routinely drafts pleadings and discovery responses, and as an attorney who counsels clients on their public statements, and drafts and executes releases, settlement agreements, and all sorts of stipulations and proposed orders, it is a reminder to pay attention to detail.

Malicious Prosecution Claims in a Post-Rehberg World

Courtesty of http://www.probono.net

A decision civil rights lawyers have been waiting on, at least in the Second Circuit's jurisdiction where I practice, since the Supreme Court granted police officers civil immunity for lying to grand juries has finally issued, and it's very much a win for the good guys. Yes, I mean us.

In Coggins v. Buonora, 13-4635 (here) -- briefed and argued by friend and outstanding attorney, Scott Korenbaum -- the Second Circuit squarely addressed the soupy quagmire that resulted from the Supreme Court's decision in Rehberg v. Paulk in 2012. In Rehberg, the Court ruled that police officers could not be sued for lying to grand juries, even if there was no doubt that they had knowingly presented false testimony in order to secure an indictment. At first blush, Rehberg appeared to sound the death knell for causes of action sounding in malicious prosecution or denials of a fair trial. Municipal defense lawyers and lying cops everywhere began to celebrate, as it appeared that one could now frame an innocent man with abject impunity, free from any concern that manufacturing or withholding evidence from grand jurors in order to bring about a criminal prosecution could be considered unconstitutional. Thankfully, such a broad reading of Rehberg was overly optimistic.

To understand the issue, one must consider the intertwining doctrines at play. A person arrested for a crime she did not commit may have a claim for false arrest. However, the scope of a false arrest claim ends once she is arraigned (meaning, first brought before a judge and advised of the charges). If the person is prosecuted beyond arraignment, her cause of action would be for malicious prosecution. She may also have a claim for denial of a fair trial, but that's a different topic for another time.

To sustain a malicious prosecution claim, a plaintiff must show (i) the defendant caused her to be prosecuted, (ii) without probable cause for the prosecution, (iii) and did so with malice, and that (iv) the charges were eventually terminated in her favor.

Prong number one is satisfied if the defendant officers drafted and forwarded arrest paperwork to prosecutors, and otherwise communicated the (false) facts underlying the arrest to prosecutors, and that the prosecution was initiated based on these allegations. A jury can find malice exists if it believes the officer lied about the circumstances of the arrest, or otherwise was trying to bring about the conviction for an improper purpose. A favorable termination generally means an acquittal, a dismissal on the prosecutor's motion, a dismissal on speedy trial grounds, or any other reason that is not inconsistent with innocence. The tricky point here is probable cause.

When a grand jury issues an indictment, it is presumptively a finding that probable cause exists for the prosecution. A plaintiff can rebut that presumption, but must show that the officers brought it about by falsifying or withholding material evidence, or through some other form of fraud or misconduct. You could be forgiven for concluding that a police officer lying to a grand jury would be precisely the sort of fraud necessary to show that the officer procured the indictment through fraud. And until a few years ago, you'd be right.

But in Rehberg, the Supreme Court concluded that principles of GJ immunity ought to extend to police officers, and thus they could not be sued for their testimony in GJ proceedings, even if demonstrably and deliberately false. They could be criminally charged by the state, but not sued by the target of their lies.

Ecstatic municipal lawyers rejoiced. After all, if you needed to show that the cop lied to or committed a fraud upon the GJ to rebut the presumptive probable cause, but could not sue over that testimony, then surely the existence of an indictment would put the kibosh on any possible malicious prosecution claim.

In response, civil rights lawyers argued, and many district courts agreed, that if the plaintiff could show that the officer procured the indictment by lying to the prosecution well in advance of the presentation to the GJ, and thus the GJ was ultimately misled by the offending officer, the plaintiff would have properly rebutted the presumption of probable cause. Thus, the GJ testimony might be relevant as evidence of the statements the officer had been making to the prosecutor since the arrest, or to confirm that the officer had withheld evidence, but the testimony itself was not the issue. The plaintiff was not suing because the officer had lied to the grand jury, but rather because of all the lies that had caused the prosecutor to present the case for indictment in the first place.

But the spectre of Rehberg continued to haunt malicious prosecution actions as defense counsel sought to muddy the waters by invoking Rehberg at every turn. The Court of Appeals' ruling on January 13, 2015, clearly and definitively cut defendants' arguments off at the knees.

In Coggins, the Second Circuit was presented with, in simplified terms, an arrest of Darryl Coggins by two officers, Craig Buonora and James Vera, for weapons possession. Coggins was prosecuted based on factual claims made by Buonora and Vera to prosecutors. Eventually, the case was presented to a grand jury. Meanwhile, another officer told Coggins's lawyer that the cops were lying. He passed that info to prosecutors, who opened an investigation which resulted in Buonora's arrest, prosecution, and conviction for perjury.

Buonora sought to have the case dismissed, arguing that plaintiff's entire lawsuit turned on the undisputed fact that Buonora lied to the grand jury. This testimony, however undeniably perjurious it may have been, simply could not be the basis for plaintiff's civil action. The Second Circuit, affirming the district court's underlying ruling, agreed, finding that Buonora was immune from any action that turned on the giving of this testimony.

However, to the extent that plaintiff's claims were based on Buonora's falsified police reports and lies told to the prosecutor following the arrest (not to be confused with the lies he may have later repeated when the prosecutor was prepping him to testify, for which he would still be immune), as well as the withholding of truthful, accurate, material, and exculpatory facts, those claims were perfectly fine. The fact that the officer repeated those lies to a grand jury would not protect him from liability for all the other times he had told these lies or withheld the truth.

The Second Circuit noted that to hold otherwise would effectively allow officers to tell all sorts of lies to prosecutors, make evidence up out of whole cloth, and destroy or suppress evidence to further cover up their misconduct and keep the criminal prosecution alive. As long as these officers could get in front of a grand jury, they would be forever shielded from any civil liability, no matter how unconscionable their actions had been. The test articulated by the Second Circuit was fairly simple:

[A district] court should determine whether the plaintiff can make out the elements of his § 1983 claim without resorting to the grand jury testimony.  If the claim exists independently of the grand jury testimony, it is not 'based on' that testimony, as that term is used in Rehberg. 

In other words, if the lies and misrepresentations at issue occurred outside of the grand jury, then plaintiffs' malicious prosecution claims are safe. It's a solid ruling grounded on both policy and Rehberg itself. This ought to help clear the air.

Marching on Montgomery

Almost 50 years ago, Martin Luther King, Jr., participated in a historic march from Selma to Montgomery, Alabama, to call attention to the ongoing fierce opposition to black voter registration, despite the Civil Rights Act passed in 1964.

My old friend Matthew's father, Stefan Sharff, and several of his film students, made a short film based on footage they shot during the march. Referred to as an intimate documentary, it is an interesting piece, about 17 minutes in length, that captures the tension of the time. The hovering helicopters and armed National Guardsmen create a sense of foreboding, a suggestion that violence may be imminent. At the same time, the marchers' constant movement forward reflects progress in the face of resistance, and the marchers' resolve and resiliency provides hope, one that is rewarded when they reach their destination, and MLK delivers his speech.

It is a compelling snapshot of America at a crossroads in early 1965, perhaps a month before I was born. It is now 50 years later, and while society has made great progress in many respects, we have barely moved an inch in others.

I urge you to watch Sharff's film, and ask yourself, how far along are we really, and how much further do we have to travel. It's a discussion we all ought to be having, although we never do. And so, here we are, so much further down the road, and yet right where we started many years ago.

Charles Hynes: the Gift that Keeps Giving

Former Brooklyn DA Charles Hynes, who left behind a tarnished legacy, to put it kindly, is about to come under renewed scrutiny. No, I'm not talking about possible criminal charges for stealing misusing forfeited drug monies to benefit his electoral campaign; that's something else. Rather, yet another case has surfaced where Hynes's office may have prosecuted an innocent man, withheld exculpatory evidence, and knowingly proceeded with a criminal case founded on police misconduct. Yes, defendants, even in civil cases, usually deserve the benefit of the doubt. But at some point there is too much weight from too many separate allegations from unrelated people, and that presumption comes crashing down. Just ask Bill Cosby.

The short version is that Clarence Bailey was convicted by a Brooklyn jury of attempted murder following a one-witness identification trial, and sentenced to 20 years. He spent a total of five years in jail before his conviction was vacated by a state appellate court on the basis that it was against the weight of the evidence. More simply, the appellate court found that the witness was plainly unreliable and that there was not enough evidence of guilt to sustain the conviction. Witnesses had testified following the jury's verdict, and again during the now-pending civil case, that NYPD detectives had threatened and forced them to inculpate Bailey.

Another Innocent Man Cleared in Brooklyn

Ret. Dt. Louis Scarcella

The other day, Justice Raymond Guzman, sitting in Kings County Supreme Court, vacated the conviction of Derrick Hamilton, who had spent more than 20 years in prison for a crime he did not commit. No, this is a not a repeat of prior posts (Here, here, and here, for example). Hamilton was released on parole in 2011, and now is entirely free.

As the NY Law Journal notes, "The vacatur is the latest in a growing list of convictions that District Attorney Kenneth Thompson has deemed unjust. Since Thompson became the borough's top prosecutor last year, his office has undone 10 convictions and dropped the appeal of a habeas grant to an 11th man." What is notable is not simply that four of these convictions flowed from arrests by NYPD detective Louis Scarcella, or that of the remaining 100 convictions that Thompson intends to review, 70 involve Scarcella. Rather, it is that Thompson still refuses to offer any broad criticism of Scarcella's work.

The Law of Unintended Consequences

The NYPD's recent union maneuverings have been both sophomoric and shortsighted, and reflect a childish petulance on the part of the leadership that threatens to further jeopardize community relations and the rank and file's relationship with the administration. They have also, however unintentionally, offered evidence that the NYPD has long been engaged in a policy of making unnecessary and gratuitous arrests.

The department has enjoyed the reflexive and unwavering support of City Hall since Rudy Giuliani was elected in 1993. While the unions and the administration would battle over money and contracts, no police misconduct was too severe to meaningfully dent the mayor's unconditional backing of the NYPD. Not the sodomizing of Abner Louima, not the 41 shots fired at the unarmed Amadou Diallo, not the shooting deaths of Sean Bell or Patrick Dorismond, nor any of the other many events that should have given City Hall pause. Now, at the first whiff of (entirely justified) criticism from the mayor, the unions have reacted like spoiled children facing their first real discipline from an exasperated parent.