Category: Allegedly Weekly

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.