This Week in Allegedly: Michael Cohen and Hells Angels

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It was another non-stop week in the world of New York City courts and crime. We break down what happened in The Allegedly List. For The Allegedly Original, Sean Piccoli explores an ongoing legal fight over in-person court proceedings — which might not have any clear winners. And if you like what you read, don’t forget to subscribe

The Allegedly List

President Donald Trump’s former fixer, Michael Cohen, is getting out of prison again. Manhattan Federal Court judge Alvin Hellerstein ruled Thursday that the feds’ decision to jail Cohen following several weeks of medical furlough was “retaliatory” for his plans to pen a book about Trump. Via The New York Times * Ghislaine Maxwell lost her bid to keep some “extremely personal” documents in civil litigation under wraps, with Manhattan Federal Judge Loretta Preska saying Thursday that her concerns “fail to rebut the presumption of public access.” Maxwell’s lawyers plan to appeal, so the docs won’t be out immediately. Via Guardian US * A Manhattan Federal Court lawsuit filed Monday alleges that Fox News is still rife with sexual misconduct, claiming that former host Ed Henry raped a female staffer — and accused Tucker Carlson, Sean Hannity, and Howard Kurtz of misconduct. The men reportedly deny the allegations. Via New York Daily News * Tyrese Haspil, who is accused of murdering and dismembering tech entrepreneur Fahim Saleh last week, pleaded not guilty. Haspil was held without bail following his arraignment early Saturday in Manhattan Criminal Court. Via The New York Times * A car thief on Long Island faked his death to stay out of jail — but his phony death certificate had a typo, foiling his plan, prosecutors said Tuesday. Registry was apparently written as “Regsitry;” the “inconsistent” font size and style were also tells. Via New York Post * The “men’s rights” activist suspected of fatally shooting New Jersey federal judge Esther Salas’ son and wounding her husband at their home is thought to have killed “another prominent men's rights figure.”  Roy Den Hollander, who killed himself in Upstate New York earlier this week, is suspected of taking an Amtrak train to California, killing Marc Angelucci on July 11. Via NBC New York * Two purported members of the Hells Angels, and another man, were charged Wednesday with fatally shooting Frank Rosado — whom police say led the Bronx’s Pagans chapter. Police claim that the three men murdered Rosado as payback for a Pagans attack on the Hells Angels Bronx clubhouse. Via New York Times * “Several hundred police officers in riot gear” dismantled the Occupy City Hall “encampment” just before 4 a.m. Wednesday. NYPD brass said they gave those present a 10-minute heads up, but one protester reportedly said: “We did not get a warning. They came in through the back and started to throw tables, started to rip into tents where people, children, sleep there, families sleep there.” Via CBS New York * Mayor Bill de Blasio again blamed New York’s state court system for plummeting arrests and rising violent crimes, claiming Thursday on CNN: “The NYPD has a lot of people they are ready, right now, to see prosecuted. But our DAs can't prosecute because there's no court system functioning yet.” Courts system spokesman Lucian Chalfen reportedly commented in response: “The Mayor’s continuing narrative regarding the operation of the State Court System throughout the pandemic is at best totally factually incorrect and at worst an attempt to shift the blame for his inability to manage the increase in New York’s street violence.” Via Queens Daily Eagle * The Department of Homeland Security on Thursday reversed its ban on New Yorkers applying for “Trusted Traveler Programs.” Adam Klasfeld had details on some backstory from a court filing, which said that government officials and lawyers provided “inaccurate and misleading statements” in litigation over the ban. Via Twitter * The New York State Bar Exam will take place after all, albeit online, Oct. 5-Oct. 6. Per Frank Runyeon, the exam is going virtual “on a onetime basis...emergency remote testing option.” Via Twitter * Disgraced ex-Assembly Speaker Sheldon Silver was hit with a 6 1/2-year prison sentence Monday in his corruption case. The 76-year-old had penned a handwritten letter to Manhattan Federal Court Judge Valerie Caproni, asking her not to give him a sentence that would lead to his death behind bars. Via Associated Press *

The Allegedly Original

We’ll See You in Court?

By Sean Piccoli

On Tuesday morning, the parties in a dispute over the reopening of New York state courts squared off in front of a federal judge and several dozen spectators. On one side were the public defender organizations that represent the city’s poorest defendants. On the other side were representatives for the state court system. The public defenders are suing the state to stop a return to in-person courtroom business after four months of coronavirus restrictions, including video-only proceedings and no jury trials.

A Bronx public defender, Jenn Borchetta, said that judges are in “a rush to bring people to court” and have already refused dozens of requests by people at elevated risk of serious illness or death from COVID-19 to reschedule hearings or appear by video. “These are acts of discrimination,” Borchetta said.

A lawyer for New York’s court system, Elizabeth Forman, was skeptical. Forman said the plaintiffs are basically asking for control of the court calendar, using fear of coronavirus — which everyone has to manage — as a pretext. “They don’t even explain how simply going to court is unduly risky,” Forman said.

A U.S. District judge in Manhattan, Andrew L. Carter, Jr., posed questions to the lawyers and said he could rule within a week on whether New York’s courts have enough safeguards to operate face-to-face. In less than an hour court was adjourned and everybody filed out — by hanging up their phones. 

The proceeding on Tuesday in Bronx Defenders et. al. versus the Office of Court Administration was entirely remote, conducted as a conference call with an entry password, the sound quality of a middling AM radio signal and, at one point, almost 80 people on the line (most with phones muted).

A phone hearing in federal court about physical hearings in local courts is where New York finds itself as the state emerges from a long pandemic lockdown. In-person appointments are already happening inside a handful of city courtrooms fitted with virus-blocking plexiglass barriers. Lawyers who spent the spring and early summer representing their clients over Skype connections, without actually being at their sides, are getting their first chance to re-connect in person.

“To me, it is a really big deal to be able to sit next to my client and have that exchange of thoughts and ideas in the middle of a hearing,” Peter Frankel, a veteran criminal defense lawyer in private practice in New York and a former prosecutor, said in an interview. 

Lawyering is also harder without eye contact and interpersonal interactions — the “human tools” that courtroom litigators use to “judge and evaluate people,” Stacey Richman, a criminal defense lawyer in New York, said in an interview. 

But lawyers in New York City aren’t racing back into state courthouses.

When the coronavirus forced criminal courts in New York City to stop doing the people’s business in person, no one in the video hearings that sprang up as replacements looked more challenged by the new routine than defense lawyers and their clients. A New Yorker brought up on charges starting in late March was in a real sense all alone: sitting inside a video booth in the bowels of a city jail; their attorney a talking head on a flatscreen; the judge and the prosecutor in adjacent video windows; everybody piped in from separate locations; and the disembodied voice of a court officer keeping the proceedings on track. 

Without lawyers physically present to listen, explain or reassure, some defendants in pretrial video appearances did what anyone might do when deprived of social cues. They spoke out of turn. They got confused. They overshared. A few might have incriminated themselves while their lawyers struggled through sometimes glitchy remote connections to get them to stop talking.

“You’re on the record,” a public aid lawyer with Neighborhood Defender Service of Harlem reminded an especially verbal client in a preliminary hearing in May. The lawyer also tried to sound encouraging. “One of the [jail] officers is going to give you my card,” the lawyer said. “You’re doing really good.”

“It’s obviously been extremely difficult for a variety of reasons,” Frankel said.

One might expect to hear defense lawyers voicing relief at the prospect of fewer video hearings — an emergency workaround that went against their training and instincts, and sometimes weighed heavily on their clients’ Sixth Amendment right to effective legal help. 

Instead, lawyers for the indigent who have had to labor through video hearings are fighting to keep them in place, arguing in their federal suit that the reopening plan violates the Americans With Disabilities Act because it endangers the people who are the most susceptible to the ravages of the coronavirus.

Representatives for all six groups — Bronx Defenders, Legal Aid Society, Brooklyn Defender Service, Queens Defenders, Neighborhood Defender Service of Harlem and New York County Defender Services — declined to be interviewed for this article. 

Other courthouse lawyers are watching the case with interest, mindful of the toll that the coronavirus took when New York was the epicenter of the U.S. outbreak. Two Brooklyn Supreme Court civil judges — Johnny Lee Baynes, 64, and Noach Dear, 66 — died of the disease. Scores of court workers were infected. 

“I think there’s some justifiable concerns,” said Richman, noting that a ban remains in force against indoor public dining in New York City: “We can’t go inside a restaurant, and we’re all going to be standing around a courtroom?” 

The state’s chief judge, Janet DiFiore, said on Monday in her regular video message that “we have a constitutional obligation to gradually transition back to in-person operations.” 

The backlog of criminal court cases in New York City alone climbed above 39,000 in June and some defendants are languishing in jails. State courts outside the city, where the coronavirus was less prevalent, are a step ahead in restarting. A handful of in-person bench trials are scheduled to resume this coming Monday, June 27, in Brooklyn. The city can convene grand juries again beginning on August 10.

It’s a far cry from the grim tidings Judge DiFiore delivered in March, when court staff were falling ill and courthouses, while remaining open, stood quiet as museums.

Since then, she said on Monday, courts across the state relying mainly on remote hearings have arraigned more than 19,000 defendants, conducted an additional 34,000 criminal proceedings, and held conferences for more than 130,000 “non-essential matters,” resolving more than a third of them. 

Lawyers in New York apparently have gotten used to video hearings in state court, even if they don’t particularly like them. It could be worse, according to Mark Cohen, who is a law partner with Frankel and spends more of his case time in New York’s Southern and Eastern district federal courts, where he said “video capacity is horrific.”

“There is none, basically,” Cohen said in an interview. “In fact, it’s mostly being done by phone and if you think video is bad, try phones.”

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