Pity the Attorney with a Difficult Client

As you may have seen, trial got underway in New York City for producer Harvey Weinstein, charged with several sexual offenses in one of the landmark cases of the #metoo movement. Today, Mr. Weinstein was excoriated by the judge for using his cell phone in court, in spite of the judge’s strict rule against it, and repeated orders not to do so. His poor attorneys end up apologizing to the judge for their client’s behavior, only for the judge to “snarl” at them as well. Apparently, they had made Weinstein turn over his cellphone earlier, but he had multiple additional cell phones and continued to access them in court. He’s literally pulling tricks to confound his own attorneys as they were trying to keep him out of trouble. The judge threatened to revoke his bond for disobeying the order, which he would have been in his power to do.

Weinstein picked a particularly bad day to disobey the judge, because new charges had been filed against him in California, and the prosecution on this case was already arguing to the court for his bond to be revoked. I think the State shot itself in the foot suggesting that they had not been in contact with the Los Angeles prosecution when the indictment was conveniently unveiled to coincide with the start of his New York trial… and that the L.A. prosecutor indicated that they certainly had been in contact with the New York D.A. The defense asked for a continuance and the judge smartly resolved everything to avoid conflict: denying the request for continuance, denying the request to revoke bail on the New York case, and ultimately setting identical bail on the California case so the court can get down to the business of conducting the trial at hand, which is expected to last around two months.

Harvey Weinstein being assisted to court

The challenge for Weinstein’s lawyers, beyond the legal challenge of defending him from the charges, will be to rein in his behavior so he doesn’t end up shooting himself in the foot. He started showing up to court with a walker, and when commentators suggested he was trying to garner sympathy, he had an extensive interview with Page Six without consulting his attorney.  He’s trying to win in the court of public opinion while his attorneys are trying to win in actual court, where the potential penalty is life in prison. He has already gone through multiple prior attorneys, before settling on this team.

The predatory rape charges included in the New York case create a huge challenge for Weinstein’s defense team as they allow the state to introduce evidence of other offenses. This includes offenses that were not charged and that may not have been brought up until after the statute of limitations, and none for which Mr. Weinstein has admitted or been convicted of. He categorically denies all charges, and says that any sexual contact was consensual. However, the State being able to bring in a string of additional accusers presents a damning fact pattern and suggestion of guilt that will be difficult for the defense to overcome, particularly coupled with some potentially humiliating evidence. Compare the case against Bill Cosby, who’s first trial ended in a hung jury. During the second trial, the court permitted evidence from additional accusers and the jury in that case convicted Cosby. On the other hand, the charges only came about after a very public campaign creating political pressure for the prosecutors to bring charges, and one of the lead NYPD investigators was prevented from testifying due to suggestions of witness coaching and withholding evidence. The case will be a hard-fought battle for the next eight weeks. The attorneys have their work cut out for them, but at least they are being well paid.

Donald Trump does not Respect the Judicial System

Donald Trump, currently President of the United States, made comments today that make clear he does not respect our constitutionally based justice system. Discussing the process for prosecuting the New York City terrorist, Trump stated at a cabinet meeting, “We need quick justice and we need strong justice — much quicker and much stronger than we have right now. Because what we have right now is a joke and it’s a laughing stock. And no wonder so much of this stuff takes place.” Fox News, in their online story about the piece, edited the quote to make it sound like he was talking about the immigration system. This quote was not about immigration. This line was about the United States criminal justice system, which Trump has insulted.

This should come as no surprise, as his imperiousness as president has frequently stepped on Constitutional protections. Famously, Trump took out full page ads in NY City papers in 1989 during the prosecution of the “Central Park Five”: 5 young men who were wrongly accused of a brutal beating and rape of a jogger in Central Park. “Muggers and murderers,” he wrote, “should be forced to suffer and, when they kill, they should be executed for their crimes.” “Though he didn’t refer to the teenagers by name, it was clear to anyone in the city that he was referring to them,” said the New York Times. The botched prosecution led to the wrong men being locked up for years, and the actual criminal, serial rapist Matias Reyes, continued to roam the streets attacking women. Even after DNA proved their innocence, and the exonerations are now an exemplar of poor police procedures and wrongful prosecution: a fact the Trump still has not acknowledged. “Quick”, by necessity, has to take a back seat to the more important principle of “justice”.

It’s ironic that he would call the criminal justice system a laughingstock the same week his former campaign chair and other advisers had charges brought against them in Federal court. They are probably happy to be out on bond as their cases are pending, and glad to avail all possible defenses under the Constitution. It’s easy to point at an evil person like the man who drove into a crowd of innocent bikers in New York… but, the Constitution protects us all. The justice system is not one size fits all, and most of the Constitutional protections are to prevent Government overreach, they are to prevent the violations of those rightly and wrongly accused. Our justice system has developed over that last two centuries as a model replicated around the world.

We all want to see justice brought to the New York City terrorist, and all those who would commit crimes against our people. But the system is not a joke. As an attorney, both prosecutor and defense attorney, respect for the Constitution and respect for our individual rights are the starting point for justice, and it is disappointing, albeit not surprising, for Donald Trump to disparage that. This is not a partisan issue… like many Republicans, I believe in our Constitution and our justice system. It’s flawed, and those of us who work in it are always working to better it, but it is not a joke. And I hope that the leaders in this country, on both sides of the aisle, stand up to speak up for it.

-UPDATE-

The White House later tried to walk back Trump’s comments about the justice system. At a briefing later in the day, spokesperson Sarah Sanders denied that Trump said our justice system was a laughingstock, and tried to claim that he was saying the process has people calling us a joke. Video LINK. But that’s not what he said… very clearly he was the one calling it a joke. Here’s his full quote:

“They’ll go through court for years,” he said. “And at the end, they’ll be — who knows what happens. We need quick justice, and we need strong justice, much quicker and much stronger than we have right now. Because what we have right now is a joke, and it’s a laughingstock. And no wonder so much of this stuff takes place.”

The fact that they are trying to reframe the president’s comments shows that they know they are inappropriate. The fact that the White House spokesperson is straight up lying to us about what the president said is embarrassing. I’ll leave it to you to decide who is the joke, here. Sadly, it’s no laughing matter.

Elmo Busted! Another Character Caught in NYC Crackdown

Elmo Arrest: Photo courtesy NYPD @nypdmts

The other day it was Batman, and Spider-Man again. You can’t go anywhere without having to worry about a furry fiend! Today Elmo was booked for aggressive solicitation in Times Square. NYPD officers had previously been giving warnings for solicitation cases, but the recent violent encounters seems to have convinced the cops that more aggressive action needs to be taken to prevent out of control characters running amok in Times Square, a major tourist draw.

Elmo Shocked at Spidey Arrest

And think, just a few weeks ago it was Elmo who was shocked at Spider-Man’s arrest…

NYC Drops Stop and Frisk Appeal, Settles Case

I heard it first from my friend Jenn Rolnick, one of the plaintiff attorneys on the case, but the formal announcement has been released. Mayor De Blasio has reached an agreement with police reforms, such as amending the training materials used by officers. Police commissioner William Bratton stated, “We will not break the law to enforce the law,” signaling an intention by the police department to follow the restraints of our Constitutional protections. This is a victory for all citizens who oppose unlawful government intrusion, and especially for those minority citizens who have been unfairly targeted by unlawful police practices in NYC.

NY police brutality case leads to lawsuit

The NY Times has this article, complete with video of part of the incident of Luis Solivan being taken into custody.  The officers alleged that he attacked them and tried to take one of their firearms.  The video shows Mr. Solivan being repeatedly punched while being held on the ground.  After considering the case, including the video, the grand jury declined to indict him on the charges, and he has since filed suit against the police department. 

I have often told defendants they were lucky that the police didn’t hurt them more, not for the sake of the injuries, but because they are more likely to be charged with felonious resisting (or worse) if the officer feels the need to justify injuries a defendant sustains in custody.  It’s scary that officers, apparently such as these cops, will exaggerate their story lie to justify their brutality.  I believe, and want to stress, that it is a small percentage of cops that are willing to do that, but across the state and country, that small percentage adds up.  I was surprised how often I’m told these stories since leaving the prosecutor’s office.  Thank goodness for vigilant citizens and video phones.  In order for the numbers of violent encounters to be reduced, both officers and offenders need to see repercussions for their actions.

This may be the scariest factor in this incident: one of the cops (Thomas Dekoker) had already been sued for excessive force, and the city lost a $500,000 dollar punitive award (which the city is contesting).  Taxpayers, these are your dollars being spent on officers who are still on the force in spite of doing this before.  And more dollars are being spent to fight the lawful award for the guy who’s civil rights were violated!