• March 26, 2018

    When Cheating is Legal

    New York State’s “Blindfold Law” is legalized cheating for the DA.  New York’s discovery rules allow prosecutors to withhold discovery and potentially exculpatory evidence for the defendant—evidence that could clear the defendant—until the eve of trial.  This means a defendant (and his attorney) can enter trial unaware of the evidence that may be used against him by the government and without evidence that may be integral to his defense, including the simple fact of his accuser’s identity. Simply put, the defense is blindfolded.   How, you might ask, can someone defend themselves against supposed “evidence” if they don’t even know what that evidence is? Well, for the most part, they don’t, because the prosecution uses this blindfold tactic to pressure defendants into taking guilty pleas. As reported by the New York Division of Criminal Justice Services, an astounding 98% of felony convictions are the result of plea deals. And that is not, I can assure you, because 98% of those defendants are guilty beyond a reasonable doubt (the standard of proof at trial), but instead because they feel the pressure of a system stacked against them and see no other way out than to accept a higher deal than they may deserve. Even if the government’s evidence is weak, the mere fact that they are not obligated to disclose it to the defendant means they can easily fool him into believing that what they have is stronger than it is. This “blindfold law” enables the government to intimidate vulnerable defendants into signing a plea, securing themselves a conviction that may not have resulted if the case had gone to trial. Furthermore, when a case does go to trial, what often ensues is a trial-by-ambush. For perspective, let me tell you about a trial we had in 2015 in New York County. After months of litigation, the day before trial, the prosecutors sent over a stack of discovery documents that would rival the page count of Tolsoy’s War and Peace—not a quick one-night-ready-for-trial-read. We asked the Judge for time to review the documents—a reasonable request seeing that reviewing discovery is necessary to properly defend any client. Our request was denied, the trial proceeded, and the government presented evidence we hardly had time to review, let alone to counter. This was a trial that haunts me to this day because it is a trial we should have won. Had the government sent the discovery documents in the ample time they had to do so, we could have. This ambush would never happen in civil court, where each side is required to comply with the standard of complete transparency. Before either side even steps foot in the civil courtroom for trial, they have each reviewed every document and piece of evidence gathered by the other side and have had the opportunity to depose every witness. A civil lawyer would never dream of settling a suit or taking it to trial without having done so. In fact, if an attorney tried to withhold discovery in civil court, both the receiving attorney and the Judge would be up in arms because it would be considered outrageous, yet this is the norm of criminal court, […]

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  • March 7, 2018

    The Most Dangerous Man In America

    The most dangerous man in America doesn’t sit atop the FBI’s Most Wanted list, but instead runs arguably the most powerful institution of our federal government—the Department of Justice.  Jeff Sessions, as United States Attorney General, has virtually unchecked power to cater the policies of the DOJ to fit his own agenda, and these policies affect everyone. The Attorney General is answerable only to the laws passed by Congress and to the President, who has the sole authority to hire or fire him. While the President’s tweeting habits may indicate he is tightening Sessions’ leash, for all of Sessions’ activity that doesn’t pertain to Mueller’s Russia investigation, the President has largely turned a blind eye. This tacit disinterest leaves Sessions with free reign over the DOJ, able to interpret the law however he sees fit. This power, in the hands of Jeff Sessions, is lethal to the last century of our country’s progress. Sessions wishes to reinstate antiquated policies mirroring those in place before the Civil Rights movement and in the heyday of the War on Drugs. History can tell us why this is a bad idea. To do so, despite his purported conservative “small government” policies, Sessions has been quietly, yet significantly, expanding the reach of the federal government, against the wishes of most American citizens. His dogged and irrational pursuit of marijuana-related crime disproportionately targets African-American neighborhoods for criminal activity and increases medical reliance across America on prescription opioids for those who would alternatively utilize the much safer and less addictive medical marijuana for pain management. His emphasis on “violent crime” diverts necessary attention from the prosecution of other prolific criminal arenas such as white-collar and cybercrimes that can and do have devastating consequences on American lives, as well as our democratic system. On top of all of this, his enthusiasm for debtor’s prisons and his call for reduced oversight of police departments, despite repeated documented police shootings and abuses of power by police officers, will lead to an assured curtailment of citizens’ civil rights. Because the American people overwhelmingly disapprove of harsher marijuana restrictions and expanding federal overreach, Sessions’ policies have received inevitable bipartisan condemnation, with criticism spouting from even the notoriously conservative Koch brothers. Recently, a bipartisan group of 54 lawmakers in Congress sent President Trump a letter urging him to direct Sessions to reinstate an Obama-era policy that gave states leeway in allowing marijuana for recreational purposes.  Despite Sessions’ claim that by pursuing strict enforcement of federal marijuana laws he aims to “enforce the laws that were enacted by Congress,” his policies are clearly not in line with the desires of Congress, who, short of changing the law, has little say in how the criminal statutes written by its predecessors are construed. In his Department Charging and Sentencing Policy memo for all federal prosecutors released in May of 2017, Sessions called on prosecutors to “charge and pursue the most serious, readily provable offense.” His primary objective seemed to be that of reversing the directives of his predecessor, former AG Eric Holder, who urged prosecutors to apply discretion when considering what charges to bring against a defendant to avoid unnecessarily harsh sentences disproportionate to the crime committed. Holder recognized a disparity between those offenders who may have made a wrong decision, or were simply in the wrong place at the wrong time, as opposed […]

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