By Matthew Russell Lee
SDNY, August 12 – Before the narcotics conspiracy trial US v. Ernest Murphy set to begin August 12 in the U.S. District Court for the Southern District of New York, Circuit Judge Richard J. Sullivan on August 9 signed an order taking back an initial proposal to partially seal the courtroom during the testimony of a witness.
Judge Sullivan has yet to respond to opposition to a whispered and seemingly sealed request to entirely conceal another sentencing; in Murphy, he admonished the lawyers for trying to take control of his calendar by requesting a day. Now what?
On Sunday night before the trial scheduled for Monday morning, Murphy's lawyers wrote again to Judge Sullivan: "Honorable Richard J. Sullivan Circuit Court Judge Sitting In District Court By Designation 40 Foley Street New York, NY 10007 Re: United States v. Ernest Murphy, 18-CR-373 Your Honor, We write to alert the Court that tomorrow morning we also intend to discuss two events that occurred after we filed our letters in support of a continuance on August 10, 2019, to wit: (1) In 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 CW while in custody in this case. The majority of these calls (~ 53 of 70) consist of 1.4MB which translates to 15 and half minutes per call. Not counting the other calls, it would take 821 minutes (over 13 and a half hours) to listen to each call. In addition, at 8:54 PM today, August 11, after the Court issued its Order, the Government emailed defense counsel and flagged 11 of the 70 calls as containing what the Government thinks may be impeachment material. The Government noted its review is ongoing and would update us. (2) At 5:14 PM today, August 11, the Government emailed defense counsel 11 documents consisting of lab reports concerning the substances and weights that are at issue in this trial. According to the Government, “This material consists of 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.” Defense counsel has been busy preparing this case to the best of its ability. We have not had time to listen to the more than 13 and half hours of CW phone calls disclosed last night. We have also not had time to review the lab reports disclosed at 5:14 PM today, let alone consider a remedy. Trial has been scheduled in this matter since November 2, 2018." What is going on here? No response, as of 1 am on the date of trial.
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 substantied cases before the Civilian Complaint Review Board. Judge Sullivan has yet to rule on this motion in limine, nor on the requests to delay the Murphy trial, nor on Press opposition to sealing the Rodriguez sentencing.
On August 10 the Ernest Murphy defense lawyers requested a two day continuance of the beginning of the trial, in a second letter specifying how the partial sealed courtroom broke down, a newsily timed MCC visit and the large amount of discovery material withheld by the government until literally the eleventh hour: "Defense counsel for Ernest Murphy (“Defendant”) submits this letter to clarify the sequence of events articulated by the Government in its letter (Dkt 431) regarding its failure to disclose videos and buy reports. Facts August 8 At 10:47 AM on August 8, 2019, the Government alerted the Court that the NYPD refused to give the Government the UC’s name even on an attorney’s eyes only basis. Dkt 419. At 3:23 PM the Court ordered that by midnight, the Government apprise the Court whether it still intended to call the UC as a witness at trial, and if so, address whether such testimony without disclosure of the witness’s true name to defense counsel will implicate Defendant’s rights under the Confrontation Clause of the Sixth Amendment. At 9:40 PM, the Government filed a letter informing the Court that it would not call the UC as a witness. See Dkt 422. Starting at roughly 10 PM, I had a conversation with AUSA Matthew Hellman that lasted 33 minutes. During that conversation, AUSA Hellman informed me that the Government had buy videos it had not previously disclosed and would be doing so later that evening. August 9 At 1 AM on August 9, Rosanna Corrado of the US Attorney’s Office emailed defense counsel stating that all of the new files had been uploaded onto USAfx except for two folders and one file that were too large to upload. She stated that these two folders and one file would be made available to defense counsel on a DVD the next morning (August 9). At 10:30 AM on August 9, Rossana Corrado personally gave me the DVD in the lobby of the US Attorney’s office. I immediately went to Emma Greenwood’s office so her staff could conduct an analysis of the DVD and what was downloaded on USAfx. The DVD contained 1.95GB and the USAfx uploads 14.6GB. Her staff completed the analysis of the DVD and concluded that the Government did not provide its contents to her office in global discovery. As to the files on USAfx, I tried to download them in Greenwood’s office so her team could conduct an analysis of whether those videos were previously provided to her office. The problem was that as Emma Greenwood makes clear it is not best practices to upload such large multimedia files onto USAfx. Thus from 10:49 AM to 3:40 PM, only 6.6GB of 14.6GB had been downloaded. Because it was taking so long, at 2:37 PM I emailed Rosanna Corrado and asked how long it would take to upload the 14.6GB onto a thumb drive. At 3:22 PM, AUSA Karin Portlock emailed me stating that the materials could be uploaded to a thumb drive if I preferred. At roughly 3:45 PM, I personally gave AUSA Portlock a 32 GB thumb drive. At 5:24 PM, Rosanna Corrado emailed me stating that the thumb drive was ready to be picked up in the lobby. We did not receive that email at 5:24 PM. At that time, Patrick Joyce was already speaking to the Defendant at the MCC, and I was in the MCC en route to joining them. We stayed with our client until roughly 7 PM. While we were there, at 6:09 PM AUSA Portlock emailed Emma Greenwood asking for a 64GB thumb drive because “We received additional videos and need to produce to all counsel ASAP.” At 11:39 PM, the Government filed its supplemental motion in limine seeking to preclude cross-examination of certain government witnesses. See Dkt 429. August 10 At 12:47 PM today, August 10, I emailed the AUSAs a draft letter motion for a two-day continuance in which based on the 6:09 PM email from Portlock to Greenwood, I asserted that even more videos (other than the USAfx and DVD videos) would be coming on Monday, August 12, 2019. AUSA Elinor Tarlow emailed me back asking me to correct the assertion because no new videos would be coming to defense counsel on Monday. Instead, the US Attorney’s office would be providing all other defense counsel in this case on Monday with the same 1.95GB of information from the DVD and 14.6GB of information from USAfx. I have not yet picked up the thumb drive from the US Attorney’s office let alone taken that thumb drive to Emma Greenwood’s office, which is closed until Monday. In conclusion, Defendant respectfully requests the reasonable two-day continuance, which the Government consented to in Dkt 431." We'll have more on this.
Judge Sullivan has yet to respond to opposition to the proposed total sealing of the sentencing of another cooperating witness Jose Rodriguez. Inner City Press is covering both of these days.
Earlier 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.
On August 6 Judge Sullivan indicated his willingness pending submission a map to partially seal the courtroom during the testimony of at least one witness, an undercover officer.
Inner City Press which has been covering the Murphy case some days ago contested sealing in another case before Judge Sullivan, so far without response. It is not clear for this partial sealing what opportunity the press or public have to be heard.
Assistant US Attorneys Karin Portlock, Elinor Tarlow and Matthew Hellman made the request for partial sealing and argued for it in a final pre trial conference on August 6, with Inner City Press in the gallery. They resisted specifying where the undercover officer proposes to continue operating, referring to a map that is listed as Government Exhibit 114. That map is not online, and recent requests for exhibits have gone unanswered.
Even if and when this exhibit it shown to the jury, there is no video monitor for the press and public gallery in SDNY Courtroom 15A Judge Sullivan has been using, which has for example no swinging doors by the jury box and no name on the front door.
The government request states, and Judge Sullivan on August 6 repeated, that an audio feed would be provided into another courtroom and a court reporter's transcript available in 24 hours - if, it seems, one can afford it. Even Murphy's lawyers said they cannot afford the Live Feed that Judge Sullivan and the government counsel table will have.
Judge Sullivan in his affable way asked defendant Murphy if he had been informed of a plea offer, to a five to forty year sentence, previous offered. Murphy said yes, adding "I'm not guilty."
So the trial will begin on August 12, with the witness listed with a pseudonym such that potential jurors won't know if they know the person - apparently a woman - or not. We'll have more on this.
The day before the final pre trial conference, on August 5 a co-defendant of Murphy's was sentenced to 54 months imprisonment.
Robert Rhodes was a part of this alleged crack conspiracy for 11 weeks, responsible for 155 grams of crack. But as Judge Sullivan noted, Rhodes previously served two years for shooting a man in the shoulder - then got out of jail and sold crack.
Rhodes' lawyers Sarah M. Sacks and Bennett M. Epstein asked for 36 months, citing personal tragedy, time in the cold at the MDC and that the State of New York provided a dangerous handball court then got Rhodes addicted to opioids.
Assistant US Attorney Karin Portland, who will prosecute the Murphy trial starting August 12, emphasized that even addicted to opioids, Rhodes sold drugs to others. Judge Sullivan dug into this, and to other issues, pointing out that they cut both ways, like the family support Rhodes has. He had the support when he committed the crimes, too. At a fifteen minute break to deliberate, Judge Sullivan explained his reasoning for the 54 months, saying public explanations are important. Inner City Press agrees. We'll have more on this.
Ten days before the Murphy trial, a wildcard arose on August 2. It is a gun from a 2013 shooting in Brooklyn that may be connected to defendant Ernest Murphy but is not, the government concedes, connected to the narcotics conspiracy.
Judge Sullivan fired off hypotheticals at Assistant US Attorney Matthew Hellman: if you, Ms. Portlock and I were in a conspiracy and I asked you to buy me lottery tickets, would that be evidence of the conspiracy?
When Hellman said that a gun or disposing of a gun is different in that it is a crime, Judge Sullivan ask if the three of them were in an insider trading conspiracy, would it be relevant if he asked Hellman to go rob a convenience store?
That may be the operative word, convenience. The defense sought an adjournment of the trial date to hire an expert; the government indicted it would consent to an adjourment from August 12 to September 9. "You're trying to take over my schedule?" Judge Sullivan asked. He said the trial will go forward on August 12, with a final pre-trial conference next week. Inner City Press will follow this case, US v. Tyshawn Burgess, Ernest Murphy et al., 18-cr-373 (RJS), and other cases including those below.
Back on July 22 in a court proceeding that began as open, with the defendants' family members and even legal interns present, Inner City Press was ordered to leave, leaving no media or member of the general public present.
It took place in the U.S. District Court for the Southern District of New York at 500 Pearl Street in Courtroom 14C before Judge Paul A. Crotty: USA v. Perlson, 18-cr-751.
When Inner City Press went in at 11:30 am, at first Judge Crotty was asking why a transcript in the case said it was from November 31, when November has only 30 days.
"Good catch," the Assistant US Attorney said, adding that he thought it was from October 31. He added that Perlson would now be allocuting to Count 2 and that there was a cooperation agreement.
Suddenly the lawyers pointed out Inner City Press in gallery, and said while legal interns were OK then objected to Inner City Press' presence. Judge Crotty asked Inner City Press to identify itself.
"I am a reporter. If you are going to try to close a public courtroom there must be specific findings, for specific portions. There is case law."
There followed a sidebar, apparently transcribed, from which Inner City Press was excluded. At the end Judge Crotty while ordering Inner City Press to leave said that the government's case is moving along well and that he hoped to unseal the transcript in a month.
But is that enough? Inner City Press left the courtroom as ordered, adding as it left that a case on point is United States v. Haller, 837 F.2d 84, 87 (before closing a proceeding to which the First Amendment right of access attaches, the judge should make specific, on the record findings demonstrate that closure is essential to preserve higher values and is narrowly tailored to serve that interest).
But Inner City Press was not given an opportunity to make its argument before being ordered out. And once back to the PACER terminal at which it has been working for months, searching by "Perlson" resulted in nothing, and 18-cr-751 "case not found."
