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Does Bill Cosby Deserve an Appeal?

#TBT to when I was on Fox News moments before Bill Cosby received his 10-year sentence. The Pennsylvania Supreme Court just accepted Cosby’s appeal. I had raised the problems with Cosby’s conviction on Fox & on i24 Israeli news.

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The Cops Who Killed Rayshard Brooks Aren’t Guilty of Murder; The Prosecutor Is Guilty of Malpractice

This op-ed also appears in the New York Daily News

 

In the wake of George Floyd’s death and protests, there was another cop-involved killing — this time in Atlanta. Just over a week ago, Officers Garrett Rolfe and Devin Brosnan attempted to arrest Rayshard Brooks for DWI. Brooks had been sleeping drunk behind the wheel of his car in a Wendy’s drive-through. Then, after failing a sobriety test, he fought with the cops, grabbed Brosnan’s taser, ran, then fired the taser at Rolfe, before Rolfe shot and killed him.

Fortunately for Rolfe and Brosnan, multiple videos captured the 40 minutes of interaction between them and Brooks. The cops were making a lawful arrest for DUI and the videos show their valid response to the deadly situation created by Brooks. Yet Atlanta District Attorney Paul Howard ordered both cops arrested and announced 11 charges against Rolfe, including felony murder. Howard filed these charges at a time when he is in danger of losing his reelection bid, and under criminal investigation himself for allegedly using a nonprofit to funnel $140,000 of Atlanta funds to supplement his salary.

Howard should face serious repercussions for irresponsibly bringing these charges.

 

The charges against Rolfe boil down to whether under Georgia law, the taser is a “deadly weapon.” The answer lies with Howard. Just 10 days before Rolfe’s arrest, Howard announced that he had charged several Atlanta cops with excessive force involving a taser. CNN reported that the taser is referred to as a “deadly weapon” in those arrest reports. At that press conference, Howard stated unequivocally that “under Georgia law, a taser is considered as a deadly weapon.” Apparently, for Howard, it’s not a deadly weapon if it’s used against a cop.

 

In attempting to justify Rolfe and Brosnan’s arrests, Howard claimed that “Mr. Brooks never displayed any aggressive behavior.” Was that before or after Brooks fought the two officers, grabbed one of their tasers, and then fired it at the other? Howard then claimed that the cops didn’t follow procedure in informing Brooks of the reason for his arrest.

 

 

In the video, Brooks repeatedly admitted drinking that night, was found sleeping in a drive-through and failed the sobriety test. Rolfe, before attempting to handcuff Brooks, explicitly told him that he was arresting him for DUI. Implicitly, Howard is saying he would have preferred the cops to let a drunk driver go, thereby endangering many more lives. Howard has some support here — a group of law professors interviewed by USA Today believed that the cops should have let Brooks, a drunk driver, go free. I am sure everyone involved in law enforcement, MADD, SADD and any person whose life has been upended by a DUI would view the situation differently than these academics.

Next, Howard claimed that the officers didn’t provide immediate medical attention to Brooks and cited a two-minute gap before they called for backup. Howard wants the public to believe that two minutes was an unreasonable amount of time when the officers had just been attacked and potentially killed themselves by a taser — a deadly weapon by Howard’s own admission, and also according to The New York Times.

Regarding Brooks, it’s unclear whether the officers knew that he had a violent criminal history. At the time, Brooks was on probation for multiple felony convictions, including false imprisonment and cruelty to children charges. If they did know, they didn’t treat him like a perp, as they were respectful to him up to the moment he started fighting with them.

Notably, Howard charged Rolfe and Brosnan without notifying the Georgia Bureau of Investigation. GBI was in the process of investigating the encounter and it only makes sense for Howard not to wait for a completed investigation to bolster his weak reelection chances and divert attention from his own criminal investigation.

Furthermore, by charging them, Howard ignored Georgia’s Justification statute. Rolfe’s actions were justified if he used “force which is intended or likely to cause death or great bodily harm…if he…reasonably believe[d] that such force is necessary to prevent death or great bodily injury to himself….” Again, per Howard, a taser is a deadly weapon, and Brooks fired it at Rolfe, thus, there was no basis to terminate Rolfe, much less charge him.

 

Georgia’s attorney ethics rules require that a prosecutor in a criminal case refrain from prosecuting a charge he knows is not supported by probable cause. As both officers’ actions were in direct response to Brooks’ aggression, there was no probable cause to arrest Rolfe for murder. And there was no probable cause to charge Brosnan for aggravated assault for “put[ing] his foot on [Brooks’] arm to make sure he didn’t have access to a weapon” after Brooks had punched Brosnan, stole his taser, and then pointed and fired that taser at Rolfe.

Unlike Derek Chauvin, who I wrote faces a viable manslaughter charge, Rolfe shouldn’t have been fired. He shouldn’t face any criminal consequences. But Howard should pay a price for abusing the legal system.

To Ensure Justice for George Floyd, Derek Chauvin Must Get a Fair Trial (and We Must Recognize Keith Ellison’s Abuse of Prosecutorial Discretion)

This op-ed also appears on Law.com.

By now, almost everyone on the planet has seen the video of George Floyd dying under the knee of former Minneapolis police officer, Derek Chauvin. Since then, major U.S. cities have experienced violence and rioting the likes of which haven’t been seen since the 1992 acquittal of the LAPD cops who beat Rodney King. In Minneapolis, Chauvin and his cohorts were fired and the local prosecutor charged Chauvin with third-degree murder and manslaughter. In the wake of nationwide rioting, Minnesota’s governor appointed Attorney General Keith Ellison to take over the case. As CNN noted, the whole world was watching Ellison and he responded by adding a second-degree murder charge for Chauvin and charging the other three officers as accessories, subjecting all of them to 40-year prison terms. The quick responses by the police and prosecutors to Floyd’s death contrasted dramatically with the death of Eric Garner, who had also mouthed “I can’t breathe” when NYPD Officer Daniel Pantaleo put him in a chokehold. Pantaleo was never charged, kept getting paid for five years, and was only fired last year. As people worldwide demand “justice for George Floyd,” what does that mean? Justice starts with ensuring that Chauvin and the others receive a fair trial, requires an understanding that the video doesn’t tell all, and finally, recognizes that Ellison’s “charge‐​stacking” in response to public pressure is an abuse of prosecutorial discretion.

In determining the propriety of Ellison’s actions, we have to scrutinize Floyd’s autopsy. Floyd’s official autopsy report revealed that he was high on fentanyl, a drug stronger than heroin, and had recently used methamphetamine—a dangerous combination that can lead to respiratory distress. Floyd also had COVID-19. The official autopsy, while classifying his death as a homicide, indicated that he died of a cardiopulmonary arrest and not from suffocation. The outside autopsy commissioned by Floyd’s family indicated the cause of death was “asphyxiation from sustained pressure.” Notably, one of the doctors who conducted the outside autopsy, Dr. Michael Baden, also completed outside autopsies on Garner, Michael Brown, and on Jeff Epstein. If the State attempts to use Baden’s autopsy during Chauvin’s trial, then any defense attorney worth his salt will attack Dr. Baden as a hired gun.

When you add in that the 911 call from the store clerk where Floyd allegedly tried to pass a counterfeit bill described Floyd as “awfully drunk” and “not in control of himself,” the picture gets murkier. Moreover, other videos obtained by The Washington Post and The New York Times show Floyd resisting arrest in getting out his original car, and then struggling with officers in the backseat of the police car.

The upgraded criminal complaint notes that the autopsy revealed Floyd had underlying health conditions including arteriosclerosis and hypertensive heart disease. These health conditions, a dangerous combination of narcotics in his blood, and the police officers’ restraints obviously all contributed to Floyd’s death.

Additionally, this wasn’t Floyd’s first run-in with the law. In 2009, in Texas, he was sentenced to five years’ prison for aggravated robbery with a deadly weapon for a home invasion of a pregnant woman. He previously served time for drug and gun related offenses.

After his legal troubles, he worked security with Chauvin at a Minneapolis club. If Chauvin knew about Floyd’s violent history, that fact combined with Floyd’s size (6”7), and Floyd’s drug-induced behavior at the scene resisting arrest, it may explain Chauvin’s knee on Floyd’s neck.

Furthermore, the neck hold used by Chauvin was legal, and only in the aftermath of Floyd’s death is Minnesota attempting to ban it. With all these factors, the State will have a difficult time sustaining a conviction for second- or third-degree murder.

Per the language of Minnesota’s third degree murder statute, Chauvin, must have caused “the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.” With a legal knee hold and Chauvin experiencing first-hand Floyd’s drug-induced state, the State will have a difficult time proving that Chauvin acted with a “depraved mind without regard for human life.”

This leads us to Ellison’s add-on or charge-stacking of second degree murder, where the State must prove that Chauvin “cause[d] the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense.” That’s a mouthful, but in simpler terms, this is Minnesota’s version of the “felony murder” statute. In other words, you can get charged with murder without intending to commit murder if someone dies while you’re committing a felony, i.e. you unintentionally kill someone while committing a bank robbery.

Here, Ellison is alleging that Chauvin killed Floyd while assaulting him. This is a tall order for Ellison. From the 911 call and the store clerk’s identification of Floyd as the perpetrator of a crime, the police had probable cause to believe that he had committed a crime. Floyd then resisted arrest. For someone like me, a criminal defense attorney and former prosecutor, logic and experience dictate that if a person resists arrests, the chances of him getting injured rise dramatically. Cops can’t be prosecuted for using reasonable force while effecting a lawful arrest. The question remains then, what is “reasonable” force and whether keeping a knee on Floyd’s neck was reasonable or necessary with two other officers also restraining a handcuffed Floyd lying on his stomach.

Let’s get back to the original second degree manslaughter charge. For the State, this is the most viable charge because it could successfully argue that with Chauvin’s knee on Floyd’s neck, with Floyd’s repeated pleas that he couldn’t breathe, Chauvin “creat[ed] an unreasonable risk, and consciously t[ook]chances of causing death or great bodily harm to [Floyd].”

This brings us back to AG Ellison and his abuse of prosecutorial discretion. The local prosecutor had a viable prosecution, yet, Ellison, appointed by the governor, gave into public pressure by piling on a charge which he has little chance to prove. Ellison admitted that “winning a conviction will be hard,” and noted that there had been only one prior successful prosecution in Minnesota of a police officer for murder. Ellison also said he felt a “tremendous sense of weight”—likely the immense pressure and calls for “justice” by protesters and the governor that led to the upgraded charges against Chauvin.

By unreasonably upgrading the charges against Chauvin, however, Ellison argained with the public, and gave into demands for blood not “justice.” Ellison abused his power in placating the masses. Manslaughter is a viable charge, third-degree murder is a stretch, but second-degree murder is out of bounds. How will Ellison appease, if Chauvin is acquitted of second-and third-degree murder?

Even with the video footage, the State has the burden of proving beyond a reasonable doubt that Chauvin used unauthorized “deadly” force. With the guerrilla tactic of prosecutors charge-stacking as Ellison did here, and what the National Association of Criminal Defense Lawyers call a “trial penalty,” punishing someone for exercising one’s constitutional right to a jury trial, Chauvin may plead to manslaughter to avoid the chance of spending 40 years in prison.

To achieve justice for Floyd, Chauvin and his fellow former cops must get a fair trial. Despite the major step back with Ellison’s abuse of prosecutorial discretion, we’ve come a long way since Daniel Pantaleo choked Eric Garner to death.

Is the New York State Bar Association Relevant?

This op-ed also appears on Law.com.

During the COVID-19 crisis, the New York State Bar Association did not advocate for all lawyers to be declared “essential.” Instead, one of its sections proposed the forced vaccinations of all adults.

Last Thursday, May 28, the New York Law Journal published an article called “State Bar Group Calls for ‘Mandatory’ COVID-19 Vaccinations, Regardless of Objections.” The headline itself was jolting enough. I thought it was clickbait, but my morbid curiosity made me open it. When I did, I was dismayed to discover that a section of the New York State Bar Association (NYSBA) proposed in a report mandatory COVID-19 vaccinations for all adults, regardless of “religious, philosophical or personal reasons.” I could not believe this was being advocated in America. To my knowledge, no other bar association in this country is advocating such a position. To be fair, the section’s proposal has not yet been voted on by the full membership. The fact, however, that NYSBA commissioned a section to come up with this report, speaks to its relevancy.

NYSBA’s membership has been declining for years and the decisions to commission this report and remain silent as Governor Cuomo determined lawyers weren’t “essential” are part of the reasons for the decline. More specifically, NYSBA took no action in response to Governor Cuomo’s March 20 COVID-19 lockdown order, which failed to include lawyers in the list of essential workers. According to Law360, New York and Michigan were the only two states that failed to declare all lawyers essential. In my March 22 Daily News op-ed, I challenged Cuomo’s failure to designate criminal defense attorneys as essential. That same weekend, the New York State Association of Criminal Defense Lawyers (NYSACDL) did the same. By Sunday, March 23, criminal defense lawyers were deemed “essential.” That same week, Fox News invited me to speak about my op-ed, and there, I criticized Cuomo’s failure to include all lawyers as essential.

Despite NYSBA’s claim that it is “the voice of the legal profession in New York state,” in a marked failure of leadership, it never lobbied Cuomo to declare all lawyers as essential. In fact, on March 26, NYSBA sent a letter to Cuomo “commend[ing] [him] and each of [his] respective offices on the clear direction and outstanding leadership demonstrated in these unprecedented times.”

Contrast NYSBA’s inaction and praise for Cuomo with the immediate action taken by the New Jersey State Bar Association (NJSBA) when Governor Phil Murphy was considering shutting down New Jersey lawyers. On March 18, its president, Evelyn Padin, sent a letter to Murphy stating that “the public’s right to access to justice is one of the core foundations of a just and civilized society. Shutting down such access is not something that can be taken lightly.” By March 23, Murphy clarified his order so that Jersey attorneys could work from their offices but required work from home “whenever practicable.” NJSBA’s decisive and effective action demonstrated its relevance to its members.

Back on this side of the Hudson, NYSACDL, along with nearly 30 other bar and public defender organizations, challenged a different Cuomo order suspending a pretrial detainee’s right to petition for release. This order was especially perplexing in light of the obvious danger COVID19 posed to prison populations. NYSACDL’s president, Timothy Hoover, wrote that Cuomo’s order “denies judges and advocates the ability to do justice at the local level, when local actors are in the best position to assess the public health threat to people being held pretrial.”

While NYSACDL has repeatedly demonstrated its relevance to New York’s criminal defense lawyers, NYSBA has not done so for any lawyers. New Yorkers need access to justice— both in criminal and civil courts. Both sets of courts are still greatly limited in their functioning. Despite the public’s lack of access to the courts, NYSBA never took a position like that of its sister bar organization across the Hudson, which warned its governor that “the public’s right to access to justice is one of the core foundations of a just and civilized society [and that] [s]hutting down such access is not something that can be taken lightly.”

After a major membership decline in 2019, NYSBA launched a global bar initiative in 2020 that led to deals with two Korean and Japanese bar groups. Perhaps with more focus on its members, serving as a check on Cuomo decisions to the extent they impact lawyers and clients, and by refraining from seeking forced vaccinations, it wouldn’t need to look outside the country for members. In the meantime, consider supporting NYSACDL and its umbrella organization, the National Association of Criminal Defense Lawyers.