Allegedly

Greetings!

So, a lot has happened in New York City courts and crime news this week—from Steve Bannon’s federal bust to Run-DMC’s DJ Jam Master Jay’s cold case murder. More info in The Allegedly List. For The Allegedly Original, Catherina Gioino spoke with street vendors about Mayor Bill de Blasio’s proposed reforms to NYPD street vendor enforcement; two months after his announcement, they said little had changed to make their lives easier.

Please enjoy this week’s edition—and don’t forget to subscribe!  

The Allegedly List

• Former Donald Trump campaign manager Steve Bannon was arrested on an 150-foot yacht off Connecticut’s coast Thursday morning, for allegedly siphoning donations from an online fundraiser for the President’s border wall. Manhattan federal prosecutors charged that Bannon “received over $1m from the ‘We Build the Wall’ online campaign, at least some of which he used to cover hundreds of thousands of dollars in [his] personal expenses.” Bannon’s lawyer entered a not guilty plea at his arraignment. Via The Guardian
• Brooklyn federal prosecutors announced Monday that two men were indicted in the 2002 slaying of Run-DMC’s DJ Jam Master Jay. Ronald Washington and Karl Jordan Jr. were charged in a 10-count indictment with murder while engaged in narcotics trafficking, and firearm-related murder, for the fatal shooting of Jam Master Jay, whose legal name is Jason Mizell. Lawyers for both men entered not guilty pleas for them at their arraignments this week. Via Vulture
• A woman sued Cuba Gooding Jr. in Manhattan Federal Court on Tuesday, accusing him of raping her at The Mercer Hotel seven years ago. The Jerry Maguire actor, meanwhile, still faces six misdemeanor counts in his Manhattan criminal court groping case. Via Vulture
• The Brooklyn District Attorney’s Office established a special bureau to handle gun cases following a dramatic uptick in shootings, officials said Wednesday. One day prior to prosecutors’ announcement, New York Police Department Commissioner Dermot Shea announced that 50 percent of New York City shootings took place or were linked to Brooklyn. Via New York Daily News
• The New York Civil Liberties Union published 323,911 “unique complaint records” Thursday, minutes after the organization won a legal fight over their release. NYCLU’s database includes info about 82,000 active and ex-cops; this database features complaints that were “fully investigated” by New York City’s Civilian Complaint Review Board. Via New York Post
• Trump’s efforts to keep his tax records from Manhattan prosecutors failed Thursday, with Manhattan Federal Court judge Victor Marrero rejecting arguments that the D.A.’s office’s subpoena was “wildly overbroad.” Marrero said in his 103-page ruling that permitting him to prevent prosecutors’ subpoena would result in an “undue expansion” of presidential immunity. Via Reuters
• Prosecutors in Manhattan on Thursday pushed for the reinstatement of their indictment against former Trump campaign manager Paul Manafort, court documents revealed. Manafort had faced charges for an alleged mortgage fraud scam, but the case was thrown out in December over its purported similarity to federal charges. Via ABC News 
• The NYPD’s proposed changes to rules governing press credential revocation drew criticism at an online hearing Tuesday, with some journalists saying that cops still had too much power. Some journalists who testified insisted that press passes should be administered by City Hall, or a new “independent body,” not cops. Via New York Daily News
• Self-described “Lottery Lawyer” Jason M. Kurland was arrested Tuesday on charges that he worked with a mobster to cheat his clients. Kurland misled three of his lottery-winner clients into placing $107 million in investments that wound up losing 80 million, Brooklyn federal prosecutors said. Via New York Times

The Allegedly Original

Street Vendors Still Don’t Have Meaningful Answers on NYPD Enforcement

By Catherina Gioino

On a recent Saturday afternoon, Irena Ariza was selling Disney character masks from a sidewalk table at Junction Boulevard and Roosevelt Avenue in Corona, Queens, hoping young passersby would buy some of her colorful wares. 

Ariza noticed six New York Police Department officers from the 115th Precinct standing on the same corner as her. They were eyeing her table, but Ariza paid them no mind.  After all, Mayor Bill de Blasio had announced in June that the NYPD would no longer enforce street vending regulations. Ariza figured that she had nothing to worry about.

The Ecuador-born Ariza soon learned, however, that she did need to worry about the relationship between police and street vendors like her. In theory, the stated policy change should be positive for street vendors, who have long criticized NYPD enforcement tactics as unfair, heavy-handed attacks on their livelihoods. Street vendors and advocates have maintained that the NYPD enforcement of vendors— who often can’t get licenses because permits are capped—disproportionately impacts persons of color and immigrants. They allege that excessive NYPD scrutiny of vending impacts both permitted and un-permitted street vendors.

More than two months after de Blasio’s announcement, however, street vendors who spoke to Allegedly described working in a state of limbo. These vendors said they don’t have a clear sense of what is happening with enforcement—nor do they know whether police will help in an emergency.

As Ariza went about her work that day, still unconcerned about the police presence, she saw a pair of hands reach under the table and snatch a basket containing merchandise worth hundreds—a week’s worth of income.  Ariza screamed for help. The officers stood motionless, claimed Ariza, who does have a vending permit. Another mask vendor chased the thief, tackling him one block away. The robber dropped Ariza’s items, but the Good Samaritan was stabbed in his right hand during their scuffle. 

“None of the police standing right here helped me, only that man,” Ariza said about the alleged Aug. 8 incident. “He was the only one who ran after the thief, and he could have risked his life to catch a man robbing me of a basket of masks.”

When the man returned the basket to Ariza(pictured above), she brought him to the cops and showed them his bleeding hand. “They did not care, they did nothing but look at us,” Ariza claimed.

“The man was stabbed,” Ariza continued in Spanish. “But they did nothing. They just kept repeating ‘I don’t care,’ that they cannot do anything.”

Elsewhere, street vendors continue to work in fear of the police, due to past experiences and a present lack of information about the new policy.

Maria, who on most days wakes before sunrise to finish preparing the cheese empanadas she sells to commuting laborers at a 7-train station in Corona, said she remained wary of the police after they fined her four years ago. “They told me I cannot sell without permission, and they spilled my drinks,” the Cuenca, Ecuador native said of the strawberry and orange pulp-juice she was selling at the time.  

“The law is the law,” said Maria, who managed to successfully fight the fine with an arepa vendor’s help. “But, that was my work.”

One vendor selling tamarind and spicy mangos on Fordham Road in the Bronx felt that police were still harassing vendors. The only difference, he said, is that they were no longer issuing hefty tickets.  

“They question you for almost anything,” the man said on a recent Sunday afternoon. 

“After the protests, they are always here. See, over there,” he said, pointing to two police cars parked at the corner of Fordham Road and Grand Concourse.

“But they do not seek anything, only to question ‘oh, you have two coolers of water? Is it enough with this heat?’” 

“What can you do? It’s not that important if they tell me I must go, but for others, they are dependent on this type of work,”said the man, who has a financial buffer as he works in landscaping during the week.  Like Maria, he does not have a permit.

The man said that while he hasn’t seen as many officers patrolling for vendors, it’s due to COVID-19, not a legal shift.

“They are not here but also, no one else is, either,” he said.

“Granted, people may not be getting arrested for street vending, the NYPD is still using intimidation tactics to harass vendors,” said Carina Kaufman-Gutierrez, deputy director of the Street Vendor Project. 

“When you think the law is unjust and the law doesn’t serve New York City and doesn’t serve the residents of New York, then those laws need to be changed. It’s literally impossible to get a permit or next to impossible,” she said. “That’s a system that doesn’t work for New York City.”

Advocates have estimated that while there are from 10,000 to 20,000 vendors in the city,  a mere 853 can get non-food vending permits, and just 5,000 can lawfully sell food, according to The New York Times.

Kaufman-Gutierrez and her colleagues have been pushing for the passage of Intro 1116, a bill that would increase the number of permits allotted annually—and completely remove the enforcement of street vendor regulations from the NYPD’s control. The bill would also create a “dedicated vending law enforcement unit” and “street vendor advisory board” of vendors, brick and mortars, and community and city representatives. 

 Many city officials support the proposed legislation, echoing these concerns.

“They are subject to harassment, inconsistent enforcement, and exploitation due to a cap restricting the number of permits given to food vendors,” said Council Member Vanessa L. Gibson in a statement. 

While Gibson and 29 other council members co-sponsored Intro 1116, it has yet to be voted on. Neither the mayor’s office nor NYPD responded to requests for comment.

Doña Maria Crespo, who has sold Ecuadorian food since immigrating to New York City more than 34 years ago, was not particularly optimistic about potential reforms. 

“Child, in the 34 years I have lived here, I have never trusted nor been supported by the police,” said Crespo, who does have a permit.  “They were mad, in that working over here, they have bothered me, they made me throw out my food and they told me to leave.”

Crespo, who is Ariza’s sister in law, said the police’s reaction to the robbery attests to vendors’ ongoing frustration. 

“I was happy when they said the police would not give us tickets,” Crespo said, “but this is not what they meant.”

Photo credit: Catherina Gioino

Hello!

New York City’s crime and courts news this week featured developments in sexual misconduct cases involving high-profile men, such as Cuba Gooding Jr. and R. Kelly—and claims of gender-based discrimination among NYPD leadership. We’ll have more on those cases in The Allegedly List. For The Allegedly Original, Andrew Denney looks at courthouse concessions amid the COVID-19 pandemic—and what potential closures mean for people at court.

The Allegedly List

• Lori Pollock, who had worked as the New York Police Department’s “first female chief of crime control strategies,” filed a Manhattan federal court lawsuit Monday alleging extensive gender discrimination—claiming NYPD Commissioner Dermot Shea demoted her in front of other high-ranking officials on Dec. 9. Pollock, who quit last week, claimed in the suit that she was “forced to retire her police career because of her gender rather than continue to endure no opportunity for advancement and the loss of her staff, authority and management responsibilities.”  Via New York Times, New York Daily News
• The Civilian Complaint Review Board, which is tasked with probing police misconduct, such as allegations of excessive force, will have to axe staff because of a $726,000 budget cut—4 percent of its $20 million budget.  In June, the board had 203 staffers, which was already lower than the 236 employees mandated by The City Charter. Via New York Daily News
• Three men were arrested Tuesday for allegedly trying to “harass, intimidate, threaten or corruptly influence” accusers in R. Kelly’s Brooklyn federal court sex trafficking case. One of the men arrested, Michael Williams, is charged with setting fire to a vehicle outside an accuser’s home this June; a witness said they “saw an individual fleeing from the scene of the fire, whose arm appeared to be lit on fire,” per court papers. Via Vulture
• A judge decided Thursday that Cuba Gooding Jr. can’t use an accuser’s purported breast size-related self-consciousness to undermine her allegations in the Manhattan groping case against him. Peter Toumbekis, one of Gooding’s defense lawyers, told Judge Curtis Farber “yes” when asked whether he thought this alleged insecurity could affect her perception of events. Via Vulture
• Brooklyn Supreme Court Justice ShawnDya Simpson was “forced into early retirement” after she was diagnosed with Alzheimer’s, and a probe of alleged disconcerting behavior in the courtroom. The New York State Commission on Judicial Conduct learned that Simpson, 54, had the memory disorder after investigating claims that “her demeanor toward litigants, lawyers, and others had become erratic and at times intemperate.” Via New York Post
• An Upstate federal judge on Tuesday threw out the lawsuit filed by an Arizona woman who claimed that New York’s mandatory 14-day quarantine for visitors from COVID 19-heavy states represented an “invasion” of the “fundamental right to travel.” She also claimed that this requirement wrongly took away her “last chance to see the sights of New York City with [her friends],” which she said “was and continues to be very upsetting.”  Via New York Post
• Winston Ortiz, 18, died Wednesday after being “stabbed in the chest, doused with a flammable liquid and then set on fire” in an apartment building near his family’s Bronx home—“while he was still alive.” Police allege that his 14-year-old ex-girlfriend’s brother, Adones Betances, killed him after they argued about the couple’s age difference. Via New York Times and New York Post
• Convicted rapist Harvey Weinstein’s accusers are asking Governor Andrew Cuomo to enact the Adult Survivors Act, which would give adult victims an opportunity to pursue legal action against alleged perpetrators far after the statute of limitations. The act is akin to the Child Victims Act, which was green-lit last August—and spurred numerous civil claims against child sex abusers. Via New York Daily News
• Manhattan District Attorney Cyrus Vance Jr., who is presently conducting an expansive probe of Donald Trump’s business, could theoretically “secretly secure an indictment and even an arrest warrant” against the President, experts said. This maneuver could help Vance’s office overcome legal deadlines—pausing prosecutions for months or potentially years, until Trump is out; Vance’s office “declined to comment on the possibility of a secret indictment.” Via Law 360
• A Brooklyn federal jail inmate who died May 19 hanged himself, city officials said. Relatives of Kenneth Houck, who was held on child porn possession charges, previously said that the Bureau of Prisons didn’t tell them he was hospitalized and claimed to have learned this from an organ donation official; one relative called his death “suspicious.” Via New York Daily News 

The Allegedly Original

A Small Concession

By Andrew Denney

For years, Jemaine Mack has held his own court at the Eastern District of New York in Brooklyn.

“You have a headache? Here’s a Tylenol,” says Mack, who has long manned the first-floor concession at the federal courthouse here. “A judge yelled at you? Here’s an aspirin.”  

Mack’s shop sells the kinds of essentials and sundries that defendants, plaintiffs, lawyers, potential jurors, and journalists might need in a pinch—cold Poland Spring waters, hot coffees, and York Peppermint Patties, while chatting about the Mets or sharing garden-variety gossip.  During the four-month trial of Joaquin “El Chapo” Guzman, the coke kingpin’s wife would often drop by for java. 

“The most notorious drug dealer in the world—and his wife is in here having coffee,” Mack says. “Martin Shkreli is down here, slapping high fives with us.” 

But Mack’s days at the Cadman Plaza courthouse may be coming to an end. On a normal day, Mack would have $300 in his till by noon. On a recent Wednesday, there was about $30 by that same point.  His shelves are barren compared to before the pandemic.

Mack and his son—who are both visually impaired and operate the concession through New York State’s program to help blind people establish small businesses—have seen a substantial decline in sales because of COVID-19. The pandemic has spurred slowdowns in the city’s state and federal courthouses—and prompted a shift to remote proceedings. While in-person proceedings are gradually resuming, they are nowhere near pre-pandemic levels. The foot traffic that courthouse concessions and cafes rely upon just isn’t there.

“The New York State Commission for the Blind (NYSCB) Business Enterprise Program (BEP) has been working closely with New York State vendors since the outset of the COVID 19 pandemic  to help offset losses incurred as a result of temporarily closing their businesses. This assistance has included continuing cash payments from prior revenue generated and set aside to offset business income losses,” officials said in a statement when asked for comment about coronavirus impacting vendors. “The NYSCB also deferred loan payments and extended terms on new or outstanding loans. NYSCB is now offering managers training and information to assist with reopening activities and is providing personal protective equipment and plexiglass barriers to the vendors.”

The program has 15 businesses in New York City area courthouses. The commission said that “although these locations are temporarily closed due to COVID-19, none is closed permanently. As the courthouses re-open to the public, BEP operators are re-opening their businesses.”

Mack’s son, who holds the license for their concession, recently told his father that he would need to be laid off for a while, until business picks up. 

The Courthouse Cafe, two floors above Mack’s shop, appears to have shuttered, with no apparent plans to reopen soon.

At Manhattan criminal court on 100 Centre Street, arguably one of the busiest courthouses in the world, Ray’s Candy Stand is now closed.

Ray Lonergan, who has manned the stand for decades, said he will be “tearing down the store and replacing it with vending machines.” When bail reform went into effect this winter, Lonergan said he lost more than half his business.

“And then, this really killed my business,” he said of COVID-19. Lonergan said that he will own and operate the vending machines, and that the state is “offering a lot of assistance,” such as with seeking bids for taking down his stand. When asked for comment on the candy stand, commission officials said, “Each vendor is making an individual decision about their own situation.”

The first-floor cafe at 100, a stalwart for quick sandwiches and caffeinated beverages, was locked, with a paper sign on the door: “SORRY 8/31/2020 OPEN AGAIN ON DATE.”

The cafes at the 500 Pearl St. and 40 Foley St. Manhattan federal court buildings stood quiet during a recent visit; several courthouse staffers said their reopening dates were unclear. The downstairs concession stand at 500 was open, but operating with limited hours, they said. 

For many courthouse regulars, these concessions and eateries provided solace amid their often grim business.

“Almost nothing good happens in 100 Centre Street, so it’s nice to see someone smiling and handing you a regular coffee every morning,” said veteran criminal defense attorney Ron Kuby, who noted that he hasn’t set foot in a courthouse since March.

Kuby recalled that one of his favorite photos is him with his mentor, William Kunstler, scarfing down hot dogs and sipping Diet Cokes in a courthouse cafe.  

“We’ve lost a lot of New York over the past few months. Some of it, it was good to see it gone: all the rich people, the incredibly heavy traffic and the big names,” Kuby said. “But losing things like local businesses, that’s tragic for everyone, for the vendors, for the customers. It hacks away at an important piece of familiarity.”

Despite shuttering his shop, Lonergan is hopeful about the future.

“Honestly, in the long run, it’ll be safer for the customers, safer for me, and I won’t have to come in every day, I’ll have to come in maybe two times a week—and that might work out,” he said.

“I’ll tell you the truth: I was thinking about retiring in June because I’ve been doing this for 30 years. So this is going to be like semi-retirement.”

Lonergan added: “It’ll be alright, I hope.”

This post has been updated with comment from state officials and Lonergan.

Today is Friday! 

New York City’s crime and courts news ranged from the sensational to the serious this week, with headlines on Tekashi 6ix9ine and a lawsuit challenging the National Rifle Association’s very existence. More details in The Allegedly List. For The Allegedly Original, author Peggy Gavan recounts a cat-centered courtroom drama from 1878 that makes today’s lawsuits between neighbors look tame. Since you’ll obviously love what you read, don’t forget to subscribe! 

The Allegedly List

• New York State Attorney General Letitia James filed a lawsuit Thursday to dissolve the NRA, alleging that the gun-lobbying group engaged in “illegal conduct because of their diversion of millions of dollars away from the charitable mission of the organization for personal use by senior leadership.” The Manhattan Supreme Court suit called out NRA head Wayne LaPierre, former treasurer and CFO Wilson “Woody” Phillips, ex-chief of staff Joshua Powell, and general counsel John Frazer, for allegedly “contributing to the loss of more than $64 million in just three years for the NRA.” Via New York Attorney General
• Not long after the AG announced her NRA suit, the group counter-sued, reportedly alleging in Albany Federal Court that “There can be no doubt that [James’] actions against the NRA are motivated and substantially caused by her hostility toward the NRA’s political advocacy.” The group also complained that James “maligned” them, “without a single shred of evidence, nor any sincere belief, that the NRA was violating the New York Not-For-Profit Corporation Law, or any other law.” Via New York Post
• Rikers Island is seeing record-high levels of violence despite a 2015 consent judgment mandating that city and Department of Correction officials fix the problem. The Manhattan U.S. Attorney’s Office said Thursday that a new agreement had been brokered “to address ongoing non-compliance” with the five-year-old judgment; this just-announced agreement will once again call for reducing unnecessary force against inmates, ramping up investigations of use-of-force, and improving supervision of young inmates. Via New York Times and SDNY. 
• Tekashi 6ix9ine is officially done with home confinement following his release from prison in April over coronavirus concerns, his attorney said Sunday. Hernandez, who was arrested in November 2018 on racketeering charges related to his involvement with the Nine Trey Gangsta Bloods, still has five years of supervised release, and 300 hours of community service to complete, as well as a $35,000 fine. Via Vulture
• Michael Cohen, who was sentenced to three years in prison after copping to campaign finance fraud, has been “offered work as a consultant and to make media appearances for a political action committee,” a Manhattan Federal Court filing revealed Wednesday. The filing also indicated that President Trump’s former lawyer, who was recently released from prison, was working “as quickly as possible” to push out a book on his ex-boss. Via Associated Press
• The Manhattan District Attorney’s Office, which has been fighting to get Trump’s tax returns, has hit Deutsche Bank, his “longtime lender,” with a subpoena, suggesting that prosecutors might be digging deeper than originally thought. Prosecutors  also mentioned “public reports of possibly extensive and protracted criminal conduct at the Trump Organization” in a court document earlier this week, indicating they might be probing potential financial crimes. Via New York Times
• New York state’s “Commission to Reimagine the Future of New York’s Courts” released a report Wednesday with recommendations on how to resume in-person proceedings, such as “consider impaneling extra alternates or extending service for grand juries to reduce the need for new panels to be picked, where permitted under the law.”  Among the ideas for handling courtroom spectators is to “consider use of pool reporter if significant media attention is anticipated” and “consider livestreaming, where available.” Via New York State Office of Court  Administration
• Eighteen New York City police unions sued Thursday over new anti-chokehold legislation, saying electeds exceeded their authority in green-lighting the law and that it “fails to give officers notice of the precise sort of conduct not permitted when effecting an arrest.”  The Eric Garner Anti-Chokehold Act classifies choke-holds—which have been banned by the NYPD for nearly 20 years—as a Class A misdemeanor that can result in fines and up to one year behind bars. Via New York Daily News
• NYPD cops utilized a paid informant to get close to the anti-police protester who was arrested for allegedly attempting to cut the brake lines on a police car, Brooklyn federal prosecutors said Wednesday.  “The information provided by the CS has proven reliable in the past and has been corroborated by independent investigative techniques,” the feds reportedly said. Via New York Daily News
• Manhattan Federal Judge Jesse Furman on Wednesday expedited the schedule of a lawsuit challenging Trump’s recent changes to the U.S. Census, which include “excluding undocumented immigrants from political apportionment and bumping up the deadline for in-person interviews.” James sued the Trump administration in July, following a memo which sought to change how “persons” were counted. Via Courthouse News Service

The Allegedly Original

Fur, Loathing, and Arsenic on the Upper East Side

By Peggy Gavan

Sitting behind his desk at the Yorkville Police Court on the East Side of Manhattan, Judge James F. Kilbreth could barely contain his laughter during what The New York Times called “the most amusing farce.” Standing before him was the plaintiff, Mr. M. Christensen of 115 East 77th Street, who had filed several complaints against his backyard neighbors, Mr. W. Lunt of 118 East 78th Street, and Mr. W. Haas of 120 East 78th Street. On his desk was the “collateral evidence, rolled up in a towel,” consisting of coal bits, brickbats, stones, and small chunks of wood.

Christensen, a Danish fresco painter, had charged his neighbors with disturbing his peace of mind and domestic comfort by using the items to torture a notorious black cat on his property. Unable to speak fluent English, he presented the judge with a hand-written note on which he wrote, “The circumstances bid us like other people to keep a cat and the law do not forbid it. A cat after my opinion is a evil, but rats and mice is still worse. A cat like other living beings cannot always be kept imprisoned in the house without cruelty to the animal.”

Smothering a laugh, Judge Kilbreth asked Lunt and Haas if they recognized any of the exhibits now splayed on his desk. They said they did not. In turn, Christensen told the judge he could not positively identify the defendants as those who had thrown the missiles. Amid great roars of laughter, the court confiscated the evidence and promptly disposed of it. 

Christensen apologized to the judge for his “hurried writing” and humbly stated that all he wanted was for the court to take notice of the situation and to issue his neighbors a warning.  

With its bumbling antagonist and hapless feline victim, this court story no doubt served its purpose in selling newspapers. Today, however, the 1878 courtroom drama is much more profound than a trivial animal tale. It is a window into the deep socioeconomic divisions of this era, all contained within a small block between East 77th and 78th Streets. 

Here, those residents on the bottom rung of the ladder had shared a symbiotic relationship with the stray cats. They depended on the felines to keep the vermin away from their food crops, and the cats relied on them to share their meager food scraps and provide shelter. Those on the top rung had no use for the cats, and thus viewed them as nuisances that interfered with their lifestyles and lowered their property values. 

Area map from the New York Public Library

The court’s handling of this case is also a good example of how justice was often reserved for the privileged few. By abruptly dismissing the case with a laugh, the judge essentially thumbed his nose at the lower-class citizens while giving a thumbs-up to the upper-crust man who had purportedly tortured a cat, damaged physical property, and committed perjury in court.             

So, how did Lunt and Haas end up in court in the first place? To answer that question, we must travel back in time to the square bounded by 77th and 78th Streets and Lexington and Fourth (Park) Avenues. 

According to the Times article, this area was an interesting mix of “aristocracy and penury,” where half was occupied by “handsome houses of the well-to-do” and the other half by “Irish families of limited means” who lived in two-story wooden cottages resembling “the thatched ones of the old country.” The former cultivated their fragrant backyard gardens with “loving care” while “the plots of ill-kept ground in front of the tumble-down structures bloom[ed] with the emerald cabbage head and the potato.”

Alas, separating the flower gardens of the upper class townhouses and the vegetable yards of the lower class cottages, was a long board fence upon which numerous stray cats gathered at night. Level with this fence was the roof of Christensen’s kitchen, where the felines held choir practice every evening. 

The Times reported at the time that “After the evening shades have fallen, it resounds with a commotion, as if a multitude of Mr. Abrahamsen’s aeolian business harps were singing their discordant solos to the balmy night air. Thereby hangs a tale, or rather thereby hang a number of tails.”

In the summer of 1878, this wooden fence made for unhappy neighbors. The reporter for the Times—possibly touching on a popular stereotype that many immigrants of that era were former pig farmers who allowed their animals to roam at will in their homeland—described the scene in saying, “The poorer denizens of Seventy-eighth Street being unable to rear the perambulating pig in their cottages, as on the other side of the water, endeavor to atone for the deficiency by rearing up whole troops of cats. Each of the poorer families has, by the estimate of the rich, at least 15 cats, with their full accompaniment of kittens.”

Then, switching gears and throwing in some anthropomorphism that the Times was famous for using during the late 1800s and early 1900s, the reporter described the conflict over this cat cacophony in political terms.

“Every night these felines hold meetings, the Thomases resorting to the Democratic cat primary, and their wives and children flocking to the female garden party. Both primaries and garden party are held by common consent upon the great board fence,” the newspaper said. “As the Thomas cats raise their voices in heated discussion of the political topics of the day, and the females expand their lungs in kindred discussion of female suffrage and a united protest against the tyranny and cruelty of the human male, the neighborhood resounds with a loud and discordant chorus, which becomes even more loud and discordant when the discussions are abandoned and the male and female unite in melodious courtship.”

Lunt not only abhorred the backyard concerts; he also believed the cats were using the fence and kitchen roof as a medium for reaching his garden and tearing up his flowers with “relentless vigor.” After watching the cats destroy his garden more than 20 times, he decided to take out a large black cat that was particularly destructive. 

So, one Sunday, Lunt placed some meat—sprinkled with arsenic—in the garden. Then he armed himself with two dozen wine bottles and stood at a rear window in his third-story brownstone, where he had a commanding view of his flowers. He watched the black cat leap onto the kitchen roof, step along the fence, spring into the garden, and drag the meat into a row of flowers. Then he fired every bottle at the cat. They all missed the target. The end result was 24 shattered bottles and a cool cat that never budged. 

Next, Lunt armed himself with a large piece of coal from the cellar, which he threw at the cat. The spry feline sprang upon the kitchen roof and jumped about 10 feet in the air as the coal struck and shattered the fence. In response to a woman in the Christensen house who shouted at Lunt, he threatened to kill the cats if she didn’t keep them out of his garden. The outcome of this threat was “a series of amusing complaining epistles to Judge Kilbreth, and the summoning to the Yorkville Police Court.” 

In the end, the judge dismissed the case. Lunt and Haas promised to return to court, but this time as plaintiffs against the neighborhood cats. The men told the Times reporter that he could expect to see them again in a few days.  

The Times concluded, “The concert of felines arose once more upon the night air in the square last night…” 

Perhaps justice had been served.

Peggy Gavan is the author of The Cat Men of Gotham: Tales of Feline Friendships in Old New York.

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Good morning!

New York City’s crime and courts news was busy this week as per usual, with Mayor Bill de Blasio repeating the same complaints about state courts that he did last week, conflicting with hard facts. We’d make a Groundhog Day joke here, owing to his repetitiveness and troubled past with the animal, but that would just be too easy. More on that in The Allegedly List. For The Allegedly Original, Craig Pittman catches up with Mike Diana, who still calls New York City home after Florida found his comics to be too obscene. Since you’ll like what you read, don’t forget to subscribe! 

The Allegedly List

• Mayor de Blasio, who was “forced to defend his grasp on reality of New York City” earlier this week after repeatedly rejecting the factual premises of reporters’ questions he didn’t like, won’t be able to keep blaming coronavirus-related court slowdowns for a surge in gun violence. Craig McCarthy and Julia Marsh reported that firearms cases are “making their way through the criminal justice system at the same rate as last year,”undermining de Blasio’s claims.  Their Thursday story comes in the wake of a story from McCarthy, Carl Campanile and Aaron Feis revealing the NYPD’s own stats didn’t support officials’ position that bail reform and early prison releases had spurred the upswing. Via New York Post
• A trove of documents in litigation against alleged Jeffrey Epstein madam Ghislaine Maxwell was released Thursday night. The Manhattan Federal Court documents contained an early 2015 exchange with Epstein in which he wrote: “You have done nothing wrong and i woudl [sic] urge you to start acting like it. Go outside, head high, not as an esacping[sic] convict. go to parties. deal with it.” Maxwell faces charges in New York City for her alleged involvement in Epstein’s sex trafficking ring. Via The Guardian
• The feds gave up their legal fight to keep Michael Cohen from talking on TV, social media, or in books. Per Ben Weiser: Government attorneys told a Manhattan Federal Court judge on Thursday that they wouldn’t challenge his ruling, which had enabled Cohen to pen a tell-all about his former boss, President Donald Trump. Remember: Cohen was sprung from federal lockup last week after judge Alvin Hellerstein ruled that jailing him after several weeks of medical furlough was “retaliatory” over his planned Trump book. Via New York Times
• Plainclothes NYPD warrant squad officers arrested protester Nikki Stone Tuesday during a demonstration in Kips Bay — placing Stone in an unmarked van; the arrest immediately spurred condemnation, as many said this tactic was reminiscent of federal agents’ behavior in Portland, Oregon.  De Blasio and governor Andrew Cuomo both criticized the NYPD’s handling of this arrest. Stone, whom police say was caught on video vandalizing an NYPD camera near City Hall Park, was released Wednesday. Via New York Post 

• Manhattan Federal Court Judge Katherine Polk Failla on Tuesday lifted a gag order that had barred the New York Civil Liberties Union from releasing a comprehensive database of NYPD misconduct complaints. While ProPublica had published data on approximately 4,000 NYPD cops over the weekend, the NYCLU’s database was more extensive. Reps for police unions appealed the decision. Via New York Daily News
• New York City’s first jury trial since the pandemic started Tuesday; proceedings in the 1989 murder case came to a half on March 4 because of coronavirus-prompted court shutdowns. Protective measures such as face shields, masks, and plexiglass barriers were present in the Bronx courtroom, reported Frank Runyeon. Several jurors wanted off of the case, the same issue that had led to a mistrial in what was supposed to be the first post-COVID jury trial in the city. Via Law 360
• New York City public defenders on Tuesday lost their bid to halt in-person court proceedings over COVID concerns, reported David Brand. These attorneys had filed a Manhattan Federal Court lawsuit against the Office of Court Administration, alleging that officials were violating the Americans with Disabilities Act; they claimed that requiring lawyers and defendants with pre-existing conditions to go to courthouses flew in the face of this law. In rejecting their suit, judge Andrew Carter said: “This Court does not, and indeed cannot, dictate if, when, and how state criminal courts reopen or schedule in-person appearances…To do so would violate fundamental principles of comity and federalism, and would result in federal supervision of state procedures and proceedings.” Via Queens Daily Eagle
• Men’s rights activist Roy Den Hollander, who killed New Jersey Federal Judge Esther Salas’ son and wounded her husband at their family home, had a lifelong history of resenting women — which became increasingly threatening as time progressed. Hollander, who fatally shot a competing men’s right activist in San Bernardino, California before the New Jersey slaying, blamed his mother for “preventing him from having a girlfriend, and his ex-wife of marrying him only to obtain a green card.” Hollander, who killed himself in Upstate New York not long after attacking Salas’ family, uploaded a chilling “1,698-page manifesto that ended with an ominous epilogue about his determination to fight ‘feminazis’ until his last breath.” Via New York Times.
• After officials told restaurants and bars it was OK to sell to-go booze, more New York City residents are imbibing outside; this is illegal unless you’re drinking at an establishment with outdoor seating. Danny Lewis reported that the NYPD is disproportionately ticketing persons of color for alleged drinking in public. From his report Tuesday: “Of the 1,250 criminal summonses for drinking in public that the NYPD has handed out since January, 48 percent were given to Black people, and about 43 percent went to Hispanic people” while just 7 percent were given to white persons. Via WNYC

The Allegedly Original

Mike Diana’s Comics Were Too Obscene For Florida.  New York City Welcomed Him With Open Arms

By Craig Pittman

In 1994, when a skinny convenience store clerk from Florida named Michael Diana walked into his local jail, the other inmates asked him what he was in for.

“For drawing cartoons,” Diana said.

“Damn,” one inmate responded. “They’ll throw you in here for anything!” 

It was true. Diana had been convicted of violating obscenity laws by producing a series of home-made comic books that he called Boiled Angel. Each one featured Diana’s crude depictions of murder, rape, dismemberment, child abuse and satanic rituals — all of which, he said, were inspired by real-life events he saw on the news. 

The three days he spent in the Pinellas County Jail made him the first cartoonist in U.S. history to be incarcerated for obscenity. They also made him famous.

Before long, the ex-inmate was appearing on national TV talk shows, displaying paintings at the Museum of Modern Art in Manhattan and delivering speeches in Amsterdam and Berlin. A rock groupie even cast his private parts in plaster – she’d done the same thing to Jimi Hendrix, she said.

Diana owes his notoriety to a real serial killer. His mail-order comic books first came to the attention of detectives while investigating the grisly 1990 slayings of five college students by a murderer tagged as “the Gainesville Ripper.” (The case was later cited as the inspiration for the Scream movie franchise.)

A drifter named Danny Rolling, the son of a police officer, eventually confessed to the murders and was eventually executed. But police believed the crudely drawn comic book scenes concocted by the stringy-haired Diana were so disturbing that they could be a preview of future massacres. 

Diana drew his grotesque creations in his spare time and published them himself. No issue of his Boiled Angel comics circulated to more than 300 readers. An undercover deputy purchased one through the mail, and then charged him with three counts of obscenity.

Although Diana’s work was self-published, he drew support from the comics industry via the Comic Book Legal Defense Fund, which would end up spending more than $50,000 supporting Diana. The fund hired one of the Tampa Bay region’s best-known free speech attorneys. Luke Lirot had not built that reputation by defending artists and writers. His clientele consisted primarily of strippers, and his arguments concerned whether their dance routines were protected by the First Amendment.

At the March 1994 trial, Diana testified that he did not intend to sexually arouse his readers. He wanted to horrify them.

“I make it as ugly as possible,” he said. “I want to make it really terrifying, because these things really terrify me.”

Lirot brought in expert witnesses from San Francisco and New York to attest to the artistic value of Diana’s drawings. The lead prosecutor professed himself unimpressed. In his closing argument, he told the jury that their area “doesn’t have to accept what is acceptable in the bathhouses in San Francisco, and it doesn’t have to accept what is acceptable in the crack alleys of New York.”

The jury’s deliberations took a mere 90 minutes. They found Diana guilty on all three counts. The verdict came in on a Friday afternoon.

Pinellas County Judge Walter Fullerton – who bore a striking resemblance to George Carlin — said he wasn’t ready to hand down a sentence. He could have sent Diana home. Instead, Fullerton sent him to cool his heels in the county jail for three days before bringing him back into court.

After his weekend behind bars, Diana learned the sentence he’d drawn: three years of probation, a $3,000 fine and 1,000 hours of community service. Fullerton also ordered him to undergo drug testing, take a journalism ethics course, get a psychological exam, draw nothing obscene and stay away from minors. The latter condition was hard to follow in Diana’s convenience store job.

Lirot, of course, appealed. Ultimately a higher court tossed out one of the three counts, because it concerned a comic book called Boiled Angel Ate that Diana hadn’t even drawn yet. He had just promised it to his handful of subscribers. The appeals court also tossed the requirement he take a drug test because no one had alleged he was taking drugs. But the appellate judge upheld the other two counts, and Lirot could not get the U.S. Supreme Court interested in the case.

By the time his appeals had run their course, Diana had quit his convenience store job and moved to New York, where he shared a rent-controlled Lower East Side apartment with a member of a band called the Voluptuous Horror of Karen Black.  He credited his decision to move to an invitation from Screw publisher Al Goldstein to appear on his show, Midnight Blue, which taped in New York.

Because of the move and the passage of time, he says, he lost track of what parts of his sentence were upheld and what parts were not, what he’d completed and what he hadn’t. That led to more trouble.

Because he failed to complete all of his probation, in 1998 he was classified as a violator and Pinellas County put out a warrant for his arrest. No deputies flew to New York to apprehend the ink-stained scofflaw. But whenever Diana would fly overseas for an exhibit or a lecture, his return home would lead to delays. Invariably, the Department of Homeland Security would hold him when he got off the plane, alerted to the presence of his outstanding warrant. Usually, he said, they would turn him loose once they found out Florida authorities wouldn’t pay to extradite him over a mere misdemeanor.

Diana finally decided to settle the matter earlier this year because he was the subject of a documentary called Boiled Angels. Winding up his case after 26 years gave the film a good ending. The two-hour film just came out on Amazon Prime last month, he said.

Diana became a truly free man in February. Now 50, Diana continues painting and drawing the same things that once landed him in so much trouble, although he has yet to produce the real-life massacre that police feared. These days, he says, the rest of the world has seemingly caught up. From his apartment in Long Island City, he watches Adult Swim shows on the Cartoon Network or images in video games, and to him they don’t look all that different from his sketches in Boiled Angel. And nobody is screaming for anyone to go to jail over those.

“Everything seems more open now,” he said.

The pandemic means you may be seeing a lot more of Diana’s artwork. He’s joined forces with a company called Threadlist to put his drawings on coronavirus masks to sell to fans. The horrors that once landed him in jail now seem to fit right in with everything else going on in 2020.

Photos courtesy of PVR.

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Hi!

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.”

Like Allegedly? Then subscribe! We’ll soon be offering paid subscriptions, too. Members will get access to important court documents and eventually, more original stories. 

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Good morning!

This was a very busy week in the world of New York City courts and crime. We break down what happened in The Allegedly List. After our roundup, Ellen Moynihan takes us to Manhattan Supreme Court for The Allegedly Original, where a post-COVID return to normalcy didn’t go quite as planned. 

The Allegedly List

Jeffrey Epstein’s pal, Ghislaine Maxwell, pleaded not guilty in Manhattan Federal Court to allegedly participating in his sex trafficking of minor girls. No surprise here: Maxwell was denied bail. Via The Guardian US * Remember that controversial deal that was supposed to settle many civil claims against Harvey Weinstein?  It’s a no-go, with the judge calling it a “phony” settlement Tuesday. Via Vulture * Tech entrepreneur Fahim Saleh was found “decapitated, dismembered” in his Lower East Side apartment. “An electric saw was found near the body” in an “apparent targeted murder.” Via New York Post * David Brand reported that public defenders are suing New York to stop in-person criminal proceedings because of coronavirus risks. Courts officials claim, however, that some legal aid orgs had already agreed to some in-person proceedings. Via Queens Eagle * Jan Ransom explored Manhattan District Attorney Cy Vance’s uncertain future, despite him beating Weinstein and landing a major  U.S. Supreme Court win involving President Trump’s tax records. Vance also hasn’t said if he’ll even run for a fourth term in 2021. Via New York Times * Trump’s lawyers, meanwhile, aren’t giving up their argument for presidential privileges regarding Vance’s subpoena. During a Manhattan Federal Court proceeding Thursday, Trump’s legal team said they wanted to peek at a sealed D.A. filing that had details on the grand jury investigation. Via New York Daily News * An analysis of videos from recent police brutality demonstrations showed not only that NYPD members used force against protesters, but “suggests that many of the police attacks, often led by high-ranking officers, were not warranted.” Via New York Times. *NYPD Chief of Department Terence Monahan, and several other officers, were injured Wednesday during a clash with protesters on the Brooklyn Bridge. Mohanan’s pinky was allegedly broken in the scuffle.  Via New York Post * The NYPD made moves that would make it easier to revoke journalists’ press credentials, their proposals coming amid criticism of how officers treated the media during New York City’s George Floyd protests. Cops pushed and harassed two Associated Press reporters, and several journalists were arrested while covering demonstrations. Via New York Post * Mayor Bill de Blasio blamed New York City’s crime uptick on the state court system, which has seen slowdowns due to COVID-19. A court system spokesman countered that the mayor “continues to refuse to take any responsibility for his actions, instead shifting the blame.” Via New York Post * Eastern District of New York prosecutors will seek the death penalty for an alleged MS-13 gang leader who’s charged in the murder of two teenage girls. Prosecutors have said Alexi Saenz’s killings often involved baseball bats and machetes, and had “substantial planning and premeditation.” Via New York Daily News * The New York Board of Law Examiners canceled the bar exam scheduled for September because of coronavirus safety concerns. The next steps are still up in the air. Via Bloomberg Law * Shootings are up, arrests are down, and obviously everyone wants to know why. Some electeds maintain that cops are “staging a work slowdown” over protests, while NYPD commanders insist they’e stretched thin, with some officers “reluctant to carry out arrests because of what they see as unfair scrutiny of their conduct.” Via New York Times. *

The Allegedly Original

A Murder Trial Didn’t Resume As Planned, But Was Coronavirus To Blame?

By Ellen Moynihan

“We tried our best, we really did,” said Manhattan Supreme Court Justice Ann Scherzer, declaring a mistrial Tuesday in the murder case against Chester Taylor and Darius Hastings.

Mistrials happen, of course, but this instance was a unique disappointment. When COVID-19 prompted the suspension of jury trials in March, this one ground to a halt. As in-person proceedings gradually expand beyond arraignments, Taylor and Hasting’s trial was supposed to resume with brand new coronavirus safety measures on July 20—the first New York City jury trial to do so. 

The Office of Courts Administration had publicized the trial’s planned resumption and safety preparations. (Taylor and Hastings reportedly maintain their innocence.) Scherzer, lawyers, and court staffers were meeting Tuesday to discuss next week’s proceedings. Not long after they gathered, OCA posted several photos of them prepping Scherzer’s courtroom on the agency’s website. One photo of Scherzer showed her donning a plastic face shield. Another showed Scherzer, lawyers, and various court staffers standing at a distance from one another, in masks. 

In the end, their best laid plans unraveled.  Officials could control the proceedings to limit infection—but they could not control jurors.

***

Shortly before noon, judge, attorneys, and court staff fluttered about a mostly empty courtroom on the 13th floor of 100 Centre St. They wove among a series of plexiglass barriers, stiffly stepping across between the well and gallery as to avoid one another.  It was physically awkward yet mildly optimistic, conducted with hushed voices and a lingering uncertainty about how to proceed. Yellow Post-it notes dotted the jury box. Numbers were scrawled on these small pieces of paper, which were affixed to every few seats, up to number four. The rest were scattered in the gallery’s first few rows. The numbers went up to 10.

Meanwhile, the court reporter stood to one side near the jury box. The judge and lawyers spoke in low tones. Then, they stopped talking. Custodial workers swooped in to clean. One wiped down the microphone on the prosecution’s side with a rag. The mic was still on. It made a loud, smothering sound, like a wad of paper towels being rubbed against one’s ear.  

Scherzer stood, tapping the top of a fat canister of Clorox disinfecting wipes.  

“They want me to leave my laptop,” she said to one worker, seeming confused. 

“What’s your name?” she asked another worker.

“John.”

“Hi John, I’m Ann. I appreciate it,” she said. “I’ve never appreciated you more.”

In the afternoon, Scherzer returned to the bench. It was time for a discussion over Taylor’s emerging concerns. The court reporter’s nose was exposed. He began to finger the top of his mask, distracted. At some point, he pulled his mask all the way down, chin-strap style.

Taylor was eventually brought into the courtroom, two sets of cuffs linked together behind his back, making a longer set that would accommodate his large frame. He wore a beige sweatshirt and khaki pants and a blue surgical mask.

“As it turns out, we just found out we have 11 jurors,” Scherzer said.   

“I had time to speak to my family extensively and without 12 jurors we were uncomfortable going to trial,” Taylor said. 

“Your co-defendant went ahead with 11,” said Scherzer. “You’re probably not going to get another trial again until 2021. I’m just making sure you know this.” (Hasting’s lawyer could not immediately be reached.) 

“It’s a long-term decision for me,” he said. “So it’s the case that I have to wait, then—”

“You have the mask over your eyes, I can’t see your face,” she interjected.

“It’s raising up, and I have no ability to pull it down,” said Taylor, who was still cuffed. A court officer reached over and pulled the mask back down for him, pumping hand sanitizer onto his gloved hands immediately afterwards.

“I’ve sat in jail and waited for two years for my day in court,” Taylor continued. “Through no fault of my own, the pandemic got started…”

“Of course,” Scherzer said. 

“My family and I are uncomfortable without 12 jurors.”

“I’m not trying to pressure you, it’s your decision,” Scherzer said.

Taylor was led into a holding cell. His lawyer, Dawn Florio, left the courtroom to speak to him. 

***

The court reporter looked at his cell phone, mask dangling from one ear.

He stood from his chair, mask hooked back over both ears but nose still free. He showed his phone to Scherzer. He had found the Office of Court Administration’s post about Taylor’s trial.  The post that showed photos of Scherzer in PPE. 

“Is that me?” asked Scherzer.

“A report about the resumption of this trial,” he said. Scherzer and the prosecutors broke into short laughs. 

Florio, whose nose poked out above her KN95 mask, re-entered the courtroom. 

“After talking to my client and his family we came to the decision that we don’t want to go to trial,” Florio said. 

A few minutes later, Taylor was brought back into the courtroom, seated next to Florio. 

“I’ll just state for the record that on March 13 we had 13 jurors,” Scherzer said. “We adjourned to April, then May, then June, then July.”

“In April, we stopped hearing from one of the jurors entirely,” she said. “She moved to Long Island to take care of her elderly parents.”  

“A week ago, another juror had gotten a new job and wouldn’t be able to make money if she took time off,” Scherzer said. “Today, the juror who said she got a job said she lost her job, which would bring it to 11 jurors.”

“To keep this case going, unfortunately it’s impossible, due to the completely unpredictable changes in our world with the coronavirus,” said the judge. “I am declaring a mistrial.”

“I express my real appreciation to everyone who retrofitted this courtroom and everyone who agreed to work under these difficult situations,” she offered with an air of resignation.

“I apologize for wasting this time,” Taylor said. 

“That’s my job. You don’t have to apologize. That’s your right. I can’t take that away from you, and I wouldn’t,” she said. 

Taylor was returned to holding, before his eventual return to jail. 

“We tried our best, we really did,” Scherzer said. 

The court reporter pulled his mask all the way down, exposing his mouth and nose. 

“Judge, it was great seeing you again,” he said. 

Like Allegedly? Then subscribe! We’ll soon be offering paid subscriptions, too. Members will get access to important court documents and eventually, more original stories. 

Want to write for Allegedly? If you’re a  New York City reporter with an idea, email victoriabekiempis [at] gmail [dot] come with [PITCH: Allegedly] in the subject line.  We pay!

NYPD Commissioner Dermot Shea testified at a virtual public hearing Monday about interactions between cops and protesters during the demonstrations following George Floyd’s death. The hearing is part of a probe by New York State Attorney General Letitia James into the NYPD’s actions during these protests; many have alleged that police used excessive force.  Criticism of the NYPD, and other US law enforcement agencies, spurred the passage of police reform legislation in this state. 

Anyway, there’s a lot to unpack here. Allegedly is on deadline with other stuff, but here are some takeaways from the proceeding:

Outsiders

Shea claimed that the demonstrations were “different” than others, saying “the protests were almost immediately violent.” He also said there were “outside agitators” contributing to this violence. He did not provide a hard number on how many there were. Remember, the role of outside agitators in any of the violence has repeatedly come into question. Per the New York Post, a study of cell phone data from May 29 to May 31 suggests that just 9 percent of protesters came from outside the city. However, only 2.8 percent of this group were from outside the metro area. The 8,152 people tracked in this study comprise from 30 to 60 percent of all protesters in New York City, according to the Post’s write-up.

Investigations

James asked Shea how many officers were being disciplined based on their alleged conduct during protests. We didn’t get a clear answer. Shea said “There have been multiple” and that the NYPD has been “taking unprecedented steps” with transparency and the speed of investigations.  Shea said he didn’t want to give an exact number and be off.  Shea said he believed “it’s less than 10, it’s in that ballpark.”

Specifics

Remember that video of a cop waving his gun around during protests? “There is absolutely no discipline in that case,” Shea said, saying that he believed the cop’s partner or superior was hit with a bottle.  James asked if Shea thought that was appropriate, to which he replied, “You had a long period of time where literally everything but the kitchen sink was being thrown at officers…” The officer who was hit, Shea said, “is still injured at home.”  

As for the officer who made a hand gesture that seemed to evoke a white nationalist sign,  Shea said it was a topic for another conversation and “I don’t think you have the whole story on that.” James also asked about the two NYPD vehicles that drove into a crowd of protesters.  “What would you do when you are set upon and your life is in danger?” Shea said. “And I think that description of running over peaceful protesters, I don’t think that’s being fair.” (That incident is under investigation.)

Also…

Regarding allegations of excessive force, the NYPD previously sent out press releases on several incidents. Per the department: 

On June 1, in Manhattan, a probationary officer sprayed mace at a group of bystanders. According to the NYPD, internal affairs conducted an investigation; this officer was suspended without pay, and  “this case has been referred to the Department Advocate for disciplinary action.”

On May 30, a police officer was seen pulling down a man’s mask and spraying him with pepper spray. Internal Affairs investigated, the officer is suspended sans pay, and it’s gone to the Department Advocate. 

On May 29, an officer was recorded on video shoving a woman to the ground. Internal Affairs investigated; he’s suspended without pay. A supervisor who was there will be transferred. This was sent to the Department Advocate for disciplinary action. The officer was also charged with assault, the NYPD said. 

Also on May 29, the door of an unmarked cop car was opened on a Brooklyn street, hitting a protester. Internal Affairs investigated and the officer is on modified duty. Again, per the NYPD, it’s heading to the Department Advocate.

That’s it for now. Allegedly will return when we can!

Greetings from Allegedly, a newsletter bringing you New York City courts, crime, and occasional cooking coverage. 

We weren’t going to launch until we had an actual plan in place — you know, minor details like how often we would publish and boring money stuff — but the Manhattan U.S. Attorney Geoffrey Berman’s bombshell departure sped up our timeline. 

What, exactly, happened in the Southern District of New York? 

Very short answer…

Geoffrey Berman said Saturday that he was leaving his position as U.S. Attorney for the Southern District of New York, “effective immediately;” this was after Donald Trump’s Attorney General, Bill Barr, said Berman was fired, which came after a showdown over whether he would leave. 

Long answer…

Barr issued a statement Friday night saying that Berman was leaving. Per Barr’s statement, Trump intended on nominating Jay Clayton, presently the chairman of the Securities and Exchange Commission, for Berman’s gig. Clayton “has no experience as a federal prosecutor;” he’s a veteran corporate lawyer with connections to Wall Street, The Washington Post notes. 

Barr also claimed that “on my recommendation,” Trump had picked Craig Carpenito, who’s now the New Jersey U.S. Attorney, to be acting U.S. Attorney for SDNY while Clayton goes through the Senate confirmation process. Carpenito’s appointment, Barr said, would be effective on July 3. 

Barr said that “Craig will work closely with the outgoing United States Attorney to ensure a smooth transition.  I thank Craig for his continued service and for taking on this important interim responsibility.”

Berman came up at the end of Barr’s statement.

“Finally, I thank Geoffrey Berman, who is stepping down after two-and-a-half years of service as United States Attorney for the Southern District of New York.  With tenacity and savvy, Geoff has done an excellent job leading one of our nation’s most significant U.S. Attorney’s Offices, achieving many successes on consequential civil and criminal matters.  I appreciate his service to the Department of Justice and our nation, and I wish him well in the future.”

Apparently, this was news to Berman, who issued his own statement shortly thereafter: 

“I learned in a press release from the Attorney General tonight that I was ‘stepping down’ as United States Attorney.  I have not resigned, and have no intention of resigning, my position, to which I was appointed by the Judges of the United States District Court for the Southern District of New York.  I will step down when a presidentially appointed nominee is confirmed by the Senate.  Until then, our investigations will move forward without delay or interruption.  I cherish every day that I work with the men and women of this Office to pursue justice without fear or favor – and intend to ensure that this Office’s important cases continue unimpeded.”

On Saturday morning, Berman went to the office, reportedly saying outside, “I’m just here to do my job.”

Barr, meanwhile, was not happy about Berman’s statement, sending this letter on Saturday: 

“I was surprised and quite disappointed by the press statement you released last night. As we discussed, I wanted the opportunity to choose a distinguished New York lawyer, Jay Clayton, to nominate as United States Attorney and was hoping for your cooperation to facilitate a smooth transition. When the Department of Justice advised the public of the President’s intent to nominate your successor, I had understood that we were in ongoing discussions concerning the possibility of your remaining in the Department or Administration in one of the other senior positions we discussed, including Assistant Attorney General for the Civil Division and Chairman of the Securities and Exchange Commission. While we advised the public that you would leave the U.S. Attorney’s office in two weeks, I still hoped that your departure could be amicable.

Unfortunately, with your statement of last night, you have chosen public spectacle over public service. Because you have declared that you have no intention of resigning, I have asked the President to remove you as of today, and he has done so. By operation of law, the Deputy United States Attorney, Audrey Strauss, will become the Acting United States Attorney, and I anticipate that she will serve in that capacity until a permanent successor is in place.  

The letter also said: 

To the extent that your statement reflects a misunderstanding concerning how you may be displaced, it is well-established that a court-appointed U.S. Attorney is subject to removal by the President. See United States v. Solomon, 216 F. Supp. 835, 843 (S.D.N.Y. 1963) (recognizing that the “President may, at any time, remove the judicially appointed United States Attorney”); see also United States v. Hilario, 218 F.3d 19, 27 (1st Cir. 2000) (same). Indeed, the court’s appointment power has been upheld only because the Executive retains the authority to supervise and remove the officer.

Your statement also wrongly implies that your continued tenure in the office is necessary to ensure that cases now pending in the Southern District of New York are handled appropriately. This is obviously false. I fully expect that the office will continue to handle all cases in the normal course and pursuant to the Department’s applicable standards, policies, and guidance. Going forward, if any actions or decisions are taken that office supervisors conclude are improper interference with a case, that information should be provided immediately to Michael Horowitz, the Department of Justice’s Inspector General, whom I am authorizing to review any such claim. The Inspector General’s monitoring of the situation will provide additional confidence that all cases will continue to be decided on the law and the facts.

Trump’s subsequent comments only added to the confusion. 

Per the Associated Press, Trump told reporters: “That’s all up to the attorney general. Attorney General Barr is working on that. That’s his department, not my department…I wasn’t involved.”

Early Saturday evening, Berman issued another statement, saying he would leave:

“In light of Attorney General Barr’s decision to respect the normal operation of law and have Deputy U.S. Attorney Audrey Strauss become Acting U.S. Attorney, I will be leaving the U.S. Attorney’s Office for the Southern District of New York, effective immediately.  It has been the honor of a lifetime to serve as this District’s U.S. Attorney and a custodian of its proud legacy, but I could leave the District in no better hands than Audrey’s.  She is the smartest, most principled, and effective lawyer with whom I have ever had the privilege of working.  And I know that under her leadership, this Office’s unparalleled AUSAs, investigators, paralegals, and staff will continue to safeguard the Southern District’s enduring tradition of integrity and independence.”

Why was there a standoff?

Judges in Manhattan Federal Court voted unanimously in April 2018 to appoint Berman for the SDNY job. Trump’s former Attorney General, Jeff Sessions, had appointed Berman as interim U.S. Attorney in January of that year; his 120-day term was going to end. Because Trump hadn’t appointed anyone, the judges voted Berman in, per The New York Times.  According to federal law, Berman would serve in this role until the Senate green-lighted a Trump nominee.  The Times described this as a “seldom-used power.”

 So, when Berman said he wasn’t leaving, there was extensive debate whether he had to  — or whether he didn’t have to because judges had appointed him. 

Why does this matter?

The Southern District of New York and Washington, D.C. District are easily the most important U.S. federal courts. SDNY goes for the big cases — from mobsters to terrorists to made-for-tabloid fraudsters like Billy McFarland, of Fyre festival ignominy. 

When Berman became acting U.S. Attorney for SDNY., it raised eyebrows. Remember, Trump had fired Berman’s predecessor, Preet Bharara, who was known for fighting corruption. Everyone kind of wondered if Berman, a Republican, would live up to SDNY’s rep for independence — or if he would just be a Trump acolyte. 

As it turns out, Berman seemed to uphold the ethos that earned SDNY its nickname, Sovereign District of New York. 

Not only did Berman’s office charge Jeffrey Epstein for sex trafficking underage girls — SDNY prosecutors there pursued cases and investigations with links to Trump.  Berman’s office busted Trump’s ex-attorney, Michael Cohen. (Berman was recused from Cohen’s case.) Berman’s office is reportedly investigating Trump’s personal attorney, former New York City mayor Rudy Giuliani.  

One SDNY prosecutor told Allegedly, “Geoff came in amidst a lot of skepticism and outperformed everyone’s expectation. It underscored an SDNY culture that crosses party lines even today…”

“He was a surprising source of self-deprecating humor and someone who had the wisdom to staff the executive ranks with lawyers more accomplished than himself — what ultimately proved a show of strength, not weakness. He fought for the office’s independence behind the scenes and made his best 24 hours his last 24 hours.” 

“He had been something of a father figure for the office during some difficult times for some of its beloved members — illness, death, heartbreaking family losses. And he earned his place in our family. He also had done an admirable job leading the office through the unprecedented challenges of COVID-19.”

The Times described Saturday’s developments as “the culmination of longstanding tensions between the White House and Mr. Berman’s office” given how his office pursued “a series of highly sensitive cases that have troubled and angered Mr. Trump and others in his inner circle.” 

The newspaper points out that this intensifies “criticism that the president was carrying out an extraordinary purge to rid his administration of officials whose independence could be a threat to his re-election campaign.” 

What, exactly, does Berman’s departure mean?

Well, Berman’s second-in-command, Audrey Strauss, is going to be acting U.S. Attorney for the Southern District — not Carpenito.  The Times noted that  Strauss “assumed responsibility for several of the prominent investigations from which Mr. Berman had recused himself” — including the Cohen case.  

“Now that he has accepted it, it means that there will be more continuity than there would have been, since the deputy is taking over. That doesn’t mean [Main Justice] won’t be as cautious about her as they were about him. She will absolutely play it straight — the question is whether Main Justice will give her the level of autonomy that U.S. Attorneys typically enjoy,” Daniel Alonso, who headed the criminal division at the U.S. Attorney’s Office, Eastern District of New York, said in an email.

“Audrey Strauss will presumably be aligned with Berman and the rank and file, whereas [Carpenito] would be an outsider vis-a-vis the S.D.N.Y, handpicked by Barr,” Alonso also said.

David Weinstein, a white-collar criminal defense lawyer with Hinshaw & Culbertson and a former federal prosecutor in Miami, explained in an email: “In the normal course, which today nothing seems normal any more, the investigations would continue and proceed to their conclusion.  They are run by the line prosecutors and agents and reviewed by the USA if necessary.  If there was sufficient evidence to file charges, charges would be filed.”  

And that’s it…for now.

Allegedly will be back soon, we promise!

Welcome to Allegedly!

We are still working out all the details, but the general gist is this: Allegedly will provide a weekly rundown of New York City’s courts and crime news, with the occasional cooking or culture story thrown in. Allegedly is very DIY — we dont have money yet — but we will publish original stories when possible, as well as news alerts when things break.

More updates TK.