SDNY COURTHOUSE, August 13 -- When child pornography defendant Kenneth Garcia came up for a bond hearing on August 13 before U.S. District Court for the Southern District of New York outgoing Magistrate Judge Henry Pitman, he was wearing a T-shirt proclaiming, "Stand With Your Library."
Judge Pitman asked not about that, but about Garcia's employer: Kick Axe Throwing, which Garcia's lawyer described as being like throwing darts, except with axes. He emphasized that Garcia only handles sheathed axes and said while out on bond he could limit himself, at Kick Axe Throwing, to carpentry, presumably the construction and maintenance of the targets for the thrown axes.
Judge Pitman also pointedly asked, Don't ATMs involve using the Internet? When told that yes they do, he made an ATM exception to his Internet ban on Garcia. He made a point of saying that he believes, as some District Judges do, that the Adam Walsh Act and its mandatory conditions for bail is unconstitutional. We'll have more on this.
The next defendant in SDNY Magistrates Court, also on child porn charges but the focus on media interested unlike Garcia was Broadway producer Ben Sprecher. He was assigned for the proceeding a free / publicly funded Federal Defenders lawyer by Magistrate Judge Pitman.
Since Sprecher did not fill out a financial affidavit, Judge Pitman said the free lawyer was just for this proceeding.
After Judge Pitman released Sprecher on bond with the condition that he not use the Internet other than for financial transactions at automatic teller machines, Inner City Press outside the Mag Court asked his Federal Defender Martin Cohen if, once Sprecher pays to hire a private lawyer, he will be re-imbursing for free representation at this proceeding, and how much.
Cohen did not answer; in fairness he had just declined to answer about the case against Sprecher, said to have two adult children in his Morningside Heights residence which is on the market, so perhaps he did not recognize that the question about publicly funded Federal Defender representation is one that should be answered. Inner City Press aims to have more on this, and on the "other child porn defendant" also released on bond just before Sprecher's more-covered proceeding.
During Sprecher's, Judge Pitman convened Federal Defender Cohen and the Assistant US Attorney to a whispered sidebar without providing the legal basis for sealing, contrary to case law in the Second Circuit. One of the conditions was mental health services within 48 hours so that might have been it. But why not say, we are sealing for confidential medical information? Watch this site.
Just before the narcotics conspiracy trial US v. Ernest Murphy began jury selection on Monday, August 12 in the U.S. District Court for the Southern District of New York, Circuit Judge Richard J. Sullivan harshly admonished the SDNY US Attorney's Office for "abject violation of a court order."
Then he proceeded to pick a jury, a process that extended past 5 pm. In these report Inner City Press will omit jurors' names said in open court, and for now that of a cooperating witness whose identify as of this writing is still sealed in the docket, as are proceedings in US v. Rodriguez.
On August 13 Judge Sullivan told the jurors that if anyone they know comes into the courtroom to let him know and he might ask the person to leave the courtroom. Then Assistant US Attorney Karin Portlock, in a short opening statement, said after a raid on one of Murphy's stash houses he was arrested entering a Bronx courthouse with 15 bags of crack in his cap.
Defense attorney Joyce in an even shorter opening told the jury to pay particular attention to the DNA evidence in the case.
First witness Detective James Miles described an "abandonment sample" of a cigarette he said was Murphy's. But when asked why he stopped taking photographs of evidence in Murphy's bedroom in 401 Legion Street, Miles said he didn't want to touch the "white rocky substance" because he has kids. Joyce objected.
At one point Judge Sullivan, a former prosecutor, started doing his own questioning of Miles. We'll have more on this.
Without giving names, one prospective juror earlier in the process identified Ralph Avenue as a "low income area," and indicated that he would would not be unbiased regarding the drug charges at issue in this case. Another vocal prospective juror, citing his girlfriend's father having a legal role near San Fransisco, was also let go. But a late arriving juror replacing a sick one, a ran of the Seattle Seahawks, was kept on as an alternate.
Judge Sullivan took the opportunity to wax poetic on the diversity of New York juries. Due to one chosen member it seems even the morning session on Friday, August 16 will not take place. But Judge Sullivan while admonishing all and sundry not to trust or check the Internet predicts the trial will end mid-next week. Watch this site.
As a remedy for the abject violation of a court order, rather than the adjournment requested in writing by both sides over the weekend, Judge Sullivan on August 12 precluded use at the trial of hours of videos and jailhouse telephone calls. It makes the conviction of Murphy less likely; his lawyers switched their request for adjournment to preclusion. How will the US Attorney's Office answer for this? Inner City Press has asked that Office, for access to all exhibits and explanation of sealed proceedings.
On Sunday night before the trial scheduled for Monday morning, Murphy's lawyers Patrick Joyce and Robert Moore wrote to Judge Sullivan "to alert the Court that tomorrow morning we also intend to discuss [that] the late evening of August 10, 2019, the Government provided additional 3500 material to defense counsel via USAfx consisting of 70 phone calls made by the Cooperating Witness while in custody in this case."
Some evidence is being excluded; on other of the calls, defense counsel will be allowed to recall to the stand for cross examination government witness after having next weekend to review the 3500 material. The case is US v. Ernest Murphy, 18-cr-373 (Sullivan).
Also, the US Attorney's Office referred to "lab reports (primarily for reanalysis)—all but one of which we received on Friday and Saturday. We received lab report #5 corresponding to voucher 3000912001 (crack seized from Decatur) on August 1 and apologize for not sending that one along sooner."
Before Judge Sullivan on August 12, apology was not enough. He called it an "abject violation of a court order." But how will it impact the trial? Inner City Press has been covering this and other proceedings before Judge Sullivan, except one which the parties are trying to seal, here. Watch this site.
The government has argued that during the trial, whenever it now begins, the defense should not be allowed to question NYPD witnesses about, among other things, shooting and killing an armed motorist, and the City settling a ranged of cases against them for amounts like $40,000 and $15,000 and at least two substantiated cases before the Civilian Complaint Review Board.
On August 9 Judge Sullivan was set to sentence Murphy's co-defendant Tyquan Robinson. But the sentencing was postponed, for the second day in a row.
Judge Sullivan submitted Assistant US Attorney Matthew Hellman to intense questioning about why Robinson had been allowed to plead guilty to only the gun count, for a 10 year mandatory minimum sentence, and not Count 1, narcotics. He said that others don't get that deal - why Robinson?
Already in the gallery, where Inner City Press was again the only media, Robinson's four family members showed concern, later in one case tears.
Hellman replied that while Robinson maintained the stash house at 672 Decatur Street in Brooklyn it was really a "hovel" ultimately controlled by Murphy, who's set to go on trial Monday. Judge Sullivan repeated this word, hovel - then pointed to Robinson's rap lyrics which Hollman's own sentencing submission had quoted:
"In later music videos, Robinson lionized the shooting as an event which cemented the Boss Crew’s status on the block, and declared, “Talk facts/We don’t fuck with [Victim-1]/That nigga a rat/Broad day so many shots nigga couldn’t throw nothing back.” Id. From this incident and others, Robinson also warned that those who cooperate with law enforcement must be dealt with severely to avoid consequences to one’s crew: “The other niggas stupid/if you shoot a rat off him/If you don’t you gon’ be the only one taking losses.” Additionally, Robinson discussed shootouts on the block controlled by the Boss Crew, stating “So many shootouts man I swear I lost count/but they respect our shit now so I guess it all count.” Id."
Id indeed. Judge Sullivan asked Robinson's defense lawyers James Roth and Benjamin Silverman pointedly if Robinson had since "changed his tune." Roth said if Judge Sullivan was, as had become clear, considering an upward departure above ten years, he must provide notice.
And so a briefing schedule was established: Roth's briefing after vacation due on September 9, the government - without rap, we assume - on September 23, and Roth's reply on September 30. No new sentencing date has been set. Inner City Press will continue covering these cases - and in inquiring about transparency. Watch this site.
As noted this was the second morning in a row a sentencing in this conspiracy got postponed. Judge Sullivan on August 8 was set to sentence Murphy's co-defendant Lloyd Gordon.
Gordon's family has come to the courthouse, initially to 40 Foley Square then to the sign-less Courtroom 15A in 500 Pearl Street Judge Sullivan has been using. But Gordon's lawyer James Kousouros had argued that the government breached its plea agreement by doubling the amount of drugs it alleges, between the plea deal and its reporting to Probation.
First Judge Sullivan asked what the remedy would be, if Kousouros was claiming that he as as the judge was bound by the offense level Assistant US Attorney Karin Portlock had initially agreed to.
While Kousouros, not yet seeing where this was going, answered about unfairness, Judge Sullivan went on to suggest that an evidentiary proceeding known as a Fatico hearing might be necessary.
Soon Gordon was whispering to Kousouros who then said his client wanted to go forward with sentencing today. But it was too late. Judge Sullivan said by challenging the government's doubling of drug weight Kousouros had let a genie out of the bottle and raised "appellate issues."
Judge Sullivan apologized to the family members in the gallery, who by the end were nodding in agreement, that yes a possible difference in sentence between seven years and ten years was important enough not to go off half cocked. So Kousouros' brief, after this two and a a half week vacation, is due on September 6, the government's on September 20. And what of Murphy by then, in his partial sealed trial?
Judge Sullivan earlier on August 8 noted that it is an open courtroom, a strength of our system, anyone can just walk in -- except for US v. Rodriguez, apparently, on which Inner City Press will have more, as well as on the differences between the SDNY's and EDNY's boiler plate plea agreement letters. Watch this site.
Inner City Press will have more on this - see also @InnerCityPress and the new @SDNYLIVE.
