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RJ-Report-Cover-JPEG-231x300A recently published report by the Correctional Association of New York, Reproductive Injustice, addresses the reproductive health care for women in New York State prisons.  The Report was commented on here by Pace Prof. Michael Mushlin and  has sparked debates across the state. Please join PILSO (Public Interest Law Student Organization at Pace)and the CJS (Criminal Justice Society at Pace) on Wednesday, April 1, 2015 at 12:30 pm – 1:30 pm in Tudor Room of Preston Hall at Pace Law School for a panel discussion on the rights of women in NYS prisons.

The event features an exciting line-up of panelists including:

Join us for a thought-provoking discussion and learn how to get involved. Refreshments will be served!

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The Supreme Court, Kings County, has granted a post-conviction motion to vacate a conviction (CPL 440.10) where the defendant’s attorney accepted employment with the Kings County District Attorney’s Office after having been substantially involved in the preparation of the case for trial.  The attorney was assigned to the homicide bureau, became Chief of the Trial Division, and then an Executive in the office and there were no mechanisms put in place to avoid a breach of confidence or the appearance of a conflict of interest.

People v. Dennis, Indictment No.: 12843/1989 (N.Y. Kings Cnty, Mar. 16, 2015).

Pace Law School is proud to host the 15th annual Pace International Criminal Court Moot: Qualifying Round of the Americas on March 21-22, 2015 and welcome the participating teams. Preliminary rounds begin on Saturday, March 21, 2015 at 9:00 AM and the semi-final and final rounds will be held on Sunday, March 22, 2015 followed by a reception and award ceremony. The 2015 case presents the participating teams with the following issues:

  1. Whether Astafur is competent to make an Article 12(3) Declaration, triggering the jurisdiction of the Court over war crimes committed in Pantos, despite its lack of effective control over the territory of Pantos at the time of submission of the Declaration;
  2. Whether the Court has jurisdiction under the objective territorial principle over crimes committed by a Non-Party State (Braanos) via cyberspace that have an effect in a State (Astafur) that has lodged an Article 12(3) Declaration;
  3.  Whether the widespread disruption of communications and electricity during a revolt against the government of Astafur via Distributed Denial of Service attack constitutes a war crime; and
  4. Whether there must be two different victims’ legal teams under separate Victims’ Legal Representatives in this case because one portion of the victims supported secession and the other favored remaining part of Astafur.

Are you interested in judging the competition and earn CLE credits? Contact the Director, Prof. Matthew Brotmann directly at PaceICCMC@gmail.com.

From the Director of ICC Moot, Prof. Matthew Brotmann

Pace logo for ICCPace Law School has partnered Leiden University’s Grotius Center to become the official moot competition of the International Criminal Court. The upcoming competition to be held at Pace Law School is the qualifying round for the ICC Trial Competition to be held in The Hague, May, 2015. The top teams from each country competing in the Round of the Americas advance to the finals in The Hague, to compete against qualifying teams from other areas of the world. The Round of the Americas is open to all law students from the North, Central and South America as well as the Caribbean region. All other international students compete in the qualifying rounds at The Hague, unless requested otherwise.

Each team submits three memorials (briefs) requiring the students to research and develop arguments based on the three participants in ICC prosecutions, i.e., the Prosecution, the Defence and the Victims’ Advocates or Government Counsel, a new role developed for the first time for the International Criminal Court. These memorials are evaluated by legal scholars, and prizes are awarded for best brief, second place runner-up, and third place runner-up in each of the three categories of memorials. Perhaps the most exciting feature of the Moot, and one unique to this competition, is that each team of students participates in three rounds of oral arguments and has the opportunity of arguing all three perspectives: prosecutor, defence counsel and victims’ advocate or government counsel. Participating students all commented that they had never experienced a better way of learning the substantive and procedural law in a given area and fully developing the arguments of the parties than by having the opportunity to make those arguments from all three perspectives during the Moot.

The purpose of the Competition is to develop expertise in international criminal law, as practiced in the forum of the International Criminal Court. It is hoped that over time, the Competition will also educate a wider public, here and abroad, in the jurisdiction, procedures and substantive law that is utilized by the ICC in the prosecution of individuals charged with War Crimes, Crimes against Humanity, Genocide, and Crime of Aggression.

Keynote addressees and final round judges of past moots have included Amb. David Scheffer (former US Ambassador-at-Large for War Crimes Issues), Col. Linda Strite Murnane (ICTY), Judge Martin G. Karopkin (ECCC), Ms. Peggy Kuo (former Trial Attorney, ICTY), Prof. Benjamin Ferencz (former Prosecutor, Nuremburg), and Mr. Trevor Chimimba (UN). Mr. Roland Adjovi, former Senior Legal Officer of Trial Chamber III at the ICTR and Ms. Louise Doswald-Beck, Director of the University Centre for International Humanitarian Law (UCIHL) and former head of the Legal Division of the International Committee of the Red Cross, amongst others.

For further information, please see our website at www.law.pace.edu/icc or contact Prof. Matthew Brotmann at PaceICCMC@gmail.com.

POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Pace Law School, Scholar, and Renowned Expert on Prisoners’ Rights.

Following an exhaustive five year investigation the Correctional Association of New York has just released a ground- breaking study of the treatment of women in New York state prisons. The report entitled Reproductive Injustice: The State of Reproductive Health Care for Women in New York State Prisons tells a distressing tale about how female prisoners are denied basic rights essential for women including substandard gynecological care and insufficient supplies of feminine hygiene products and toilet paper. Chillingly, the report describes the horrible practice of shackling pregnant women during labor, delivery, and postpartum recovery, in apparent violation of the state’s 2009 law barring such practices, as well as throwing some of these women into solitary confinement, which could have serious consequences for the mental health of the mothers and for the health of their unborn children.

The Correctional Association of New York is a 170 year old non-governmental organization with the legal authority to visit New York’s prisons and report to the public and to the Legislature its findings. It is one of only two such organizations in the country. The author of this important study, Tamar Kraft-Stolar, director of the Correctional Association’s Women in Prison Project, will visit Pace Law School on April 1st to speak at a PILSO Sponsored forum open to the public and also to speak at the law school’s Prisoners’ Rights Course.  More details about this event will be forthcoming.

As attention is drawn to the social impact of excessive sentences, supermax detention, and overcriminalization, it makes sense to look at the same time at the social impact of collateral consequences. What purposes do collateral consequences actually serve? Not allowing someone who has served a sentence or fulfilled a punishment for criminal conduct to vote, drive, get benefits, get work without revealing a conviction, work in human services or other select industries, live in an affordable area, and the like not only holds the convict back from successful reintegration, but also prevents communities from moving on.

NICCCThe ABA has created and launched the NICCC database (National Inventory of Collateral Consequences of Convictions) that collects the law on collateral consequences in the Federal system and each of the fifty states. For review of the database, click here.


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While the jury deliberation process remains safely secret in our system, there are limits to what jurors can do and say to each other in the deliberative process when that process spills over into the courtroom. Federal District Judge Kimba Wood recently granted a petition for a writ of habeas corpus  to a defendant in a case where a Bronx trial judge refused to investigate claimed racial bias among the deliberating jurors that was brought to his attention during deliberations.

In the underlying murder trial, the jury was in its third day of deliberations when a juror sent a note to the judge saying he had been called a racial epithet and felt as if he were being forced to agree with the other jurors. A second juror asked to have deliberations suspended until the following Monday due to overwhelming tension in the jury room. On Monday, the first juror sent another note saying he was exhausted and could no longer be objective. The judge declined defense counsel’s request for an in camera interview of the individual jurors, encouraged the jurors to continue deliberating, and sent them back. Three days later the jury convicted the defendant of manslaughter and he was sentenced to serve 20 years in prison. The Appellate Division affirmed, finding that the error had not been preserved, and the court of appeals denied leave. The magistrate judge issued a report advising that the habeas petition be denied because of the same procedural default.

Judge Wood disagreed. She held that defense counsel’s objection placed the trial court on notice of the constitutional basis for his objections. Thus, the state’s contemporaneous objection rule “served no legitimate state purpose.” On the merits, the Court found that the case was one of first impression in the Circuit – Whether Federal Rule of Evidence 606(b) which bars inquiry into the validity of a verdict, prohibits jurors from testifying about statements during deliberations. The court found that the policy behind the rule – preventing the badgering of jurors by a losing party and endless litigation – does not bar the reviewing court from considering such statements when they are brought to the court’s attention before the verdict is returned. The court held that the defendant was denied a fair trial because, on the basis of a verbal racist assault, which was evidence of actual bias – deprived the defendant of his right to an impartial jury.

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As many of you may know, Monroe H. Freedman died on February 26, 2015. His funeral was held yesterday, March 1, 2015 and his obituary is available at this link.

Criminal practitioners of all stripes owe a tremendous debt to Prof. Freedman. He was a dean, a scholar, a writer, an outspoken defender of civil rights and liberties. But for our community, what he really did was to provide intellectual and moral legitimacy to ethical criminal advocacy. Without his integrity, intelligence, and courage, criminal defense lawyers would still be accused of being no better than hired guns, having no moral compass. He legitimized zealous criminal advocacy by grounding it in law, ethics, and morality; and by his own intelligence and integrity. By doing so, he improved the quality of criminal litigation on both sides of the aisle. He inspired generations of law students and lawyers  to do better with pride. His generous and open assistance to students, other professors, lawyers – to anyone who sought his help – was absolutely unique. He made us all better and he made the system better.

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A recent UK report recommending the adoption of on-line resolution of low-value civil disputes contains a fascinating look at various online dispute resolution systems currently operating in various jurisdictions, including one involving the resolution of traffic infractions. These systems are designed to improve access to justice for those who cannot afford the exorbitant cost of in-court litigation. The UK Traffic Penalty Tribunal enables appellants to appeal, upload evidence and follow their cases, and allows adjudicators to manage their cases, view evidence, and communicate with parties. Hearings are done by telephone conference, at which all participants can view the same evidence under supervision by the adjudicator. To be sure, there are pros and cons.

Food for thought, though, for anyone who has participated in the in-court adjudication of a traffic infraction; more importantly, since the unavailability of affordable legal solutions in the United States now extends beyond the traditionally poor and well into the middle class.

To read the full report, including a survey of current on-line dispute resolution processes worldwide, click the below:

Online Dispute Resolution Advisory Group, Online Dispute Resolution for Low Value Civil ClaimsCivil Justice Council (February 2015). 

POST WRITTEN BY: Maureen F. Schnepf (’17), Pace Law School

On Tuesday February 3, 2015, some of my classmates and I attended The Newburgh Sting event – an event our professors had encouraged us to attend,  assuring us it would be a great time. I had never heard of this case prior to the event and was interested in finding out whether  this was “a classic case of entrapment.” As an American, I have always had faith in our criminal justice system. However, on Tuesday, that faith was somewhat shaken. Fortunately, there were many other valuable takeaways making up for it.

The film portrays the story of four poor black men, James Cromitie, David Williams, Onta Williams and Laguerre Payan, who, as the movie portrays it, were all entrapped by an FBI undercover informant, Shahed Hussein. The FBI agency is tasked with the responsibility to combat terrorism, especially in the post 9/11 world. But at what cost do we as Americans support this goal? In order to turn these men into terrorists, Shahed Hussein approached James Cromitie, a low level marijuana dealer who worked at Walmart, to recruit him to bomb synagogues in Riverdale, NY and a military base near Newburgh, NY. Hussein kept pushing  Cromitie to find more “brothers” to come along. Hussein needed involvement of more than one person for a conspiracy charge to stand since Hussein was a government agent. Even after Mr. Cromitie temporarily disappeared, he was nevertheless pulled back in by the false sense of security that Hussein promised. Mr. Cromitie convinced three other men to help: one needed money to pay for his brother’s medical bills that had resulted from a surgery removing a tumor; another one was enticed by the promise of sustenance and financial stability which he so needed for his family; and the last one hoped this to be his ticket out of poverty-stricken Newburgh. All four men had exactly one thing in common – they all needed money. Hussein skillfully lured all four men, taking advantage of their low intelligence while promising financial security.

When the plot was being formulated (in Hussein’s living room with hidden cameras), Hussein was the one giving instructions.  It was Hussein who suggested using two bombs in a backpack and a stinger missile. Coincidentally, the use of a stinger missile triggers a mandatory 25 year sentence in prison. It was Hussein who continuously reminded the men that this was a jihad – a holy war for Allah. Mr. Cromitie and David Williams demanded reassurance from Hussein that they were only targeting property and that no one would get hurt. Hussein kept inciting the men to believe that this mission was for Allah; however, Mr. Cromitie always responded that “[t]hey can use the money.”

On the night of the attack, the whole group drove to Connecticut to pick up the – unbeknownst to the participants – fake bombs and the stinger missile. Interestingly enough, crossing state lines triggered federal jurisdiction. When the men returned to New York to switch the cars, they were apprehended by the police and FBI agents. The scene was flooded with an excessive number of police officers who claimed to be thwarting four “terrorists” – who they knew had two fake bombs that would never detonate. To top it all off, the FBI made public statements about this thwarted attack, stating that the FBI had been watching these four Muslim men who had allegedly met in prison for over a year. However, the men did not meet in prison; nor did I get the feeling from the video that they were devout Muslims because only one Quran was discovered when their homes were searched. The FBI put on a great show for the public. The four men pleaded  not guilty but were convicted and sentenced to 25 years in prison.  They lost their appeal, and their last resort, the U.S. Supreme Court, denied their writ of certiorari.

On one hand I can see how they were convicted since they followed through on the plan of committing a terrorist attack on innocent people. However, can we call this “justice”? The defendants were convicted for a crime they would have never had the ability to pull off had it not been for the government planting this idea in their minds. The defense attorneys who spoke at Pace on Tuesday shared that the trial judge, Judge McMahon, in her opinion, appeared to be setting these four men up for a successful appeal, even after the jury found the entrapment defense baseless and convicted them. That boggled my mind. In her 54 page opinion, the judge opines as if she is to find the defendants not guilty but in the last two pages she found the four defendants guilty, even Payan who clearly exhibited diminished mental capacity.

This entire situation was very sad to learn about. The families of these men who will forever be labeled as terrorists will not see them for 25 years. I can’t help but ask: would they have ever done this without the FBI? I don’t think so.

And so, what’s the lesson? Ms. Susanne Brody, Onta Williams’ defense attorney, shared that integrity is key – one must remain grounded in what is right and what is wrong – that is the key to being an attorney. Don’t just blindly follow, and stand up for what you believe is right. Another valuable lesson was to learn about the amount of time and effort invested into this case. Sam Bravermen, defense counsel for Mr. Payan, shared that his team spent close to 10,000 hours working on this case in just a few months, demonstrating the diligence, commitment, hard work, and team cooperation needed to take on a case such was this.

If there was one truth throughout the film that stuck with me the most, it was that fear is among the most potent motivators. It motivated a jury to convict these men. It motivated the FBI to plan and incite this entire “attack” in the name of security, and it appears to motivate all of us today. But perhaps we should be more fearful about the fact that our system isn’t always working as intended.  Having integrity and thus ensuring the integrity of the system we are all going to very soon be a part of, perhaps, should be our focus. Whether working as a defense attorney, a prosecutor, or for the FBI, we all should try our best to act with candor, do the right thing, and remember why we came to law school in the first place.

I urge all of you to watch this film. It speaks for itself. You may be surprised at how you feel once the credits begin to roll.

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On February 2, 2015, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, issued a statement calling on all parties to refrain from violence in the Nigerian elections, which were originally scheduled to be held in February 2015.

The Prosecutor’s statement regarding the danger of election-related violence is grounded in ICC experience. She noted that “[e]xperience has shown that electoral competition, when gone astray, can give rise to violence and in the worst case scenarios, even trigger the commission of mass crimes that ‘shock the conscience of humanity.’” Severe factional post-election violence in Kenya (in 2007-08) and Ivory Coast (in 2010-11) led the Prosecutor to bring criminal charges against individuals in both countries.

The Prosecutor’s warning regarding Nigeria has teeth because preliminary examination conducted by her Office into previous violence in Nigeria have advanced to phase 3 (of four phases). Analysis in phase 3 follows upon previous determination that there is a reasonable basis to believe that requirements for the ICC’s subject matter and territorial jurisdiction can be met, and focuses on the question of whether investigation by national authorities is sufficient so as to preclude further investigation by the ICC.

The Prosecutor is looking into allegations of violence committed by Nigerian security forces, while also giving particular focus to widely reported actions by the Nigerian insurgent group, Boko Haram. On May 8, 2014, the Prosecutor issued a public condemnation of Boko Haram’s abduction of over 200 schoolgirls. In her February 2, 2015 statement, she noted that such actions, “which shock the conscience of humanity,” must be prosecuted by Nigerian authorities or by the ICC.

The ICC’s authorizing statute focuses on the investigation and prosecution of crimes already committed. It does not explicitly set out specific responsibility for the Prosecutor to take proactive measures to prevent future crimes. Nevertheless, in its November 2013 Policy Paper on Preliminary Examinations, the Office of the Prosecutor (OTP) stated that “prevention of crimes” is one of “the overarching goals of the statute.” Accordingly, the OTP will work “proactively,” which includes “issu[ing] public, preventive statements in order to deter the escalation of violence and the further commission of crimes ….”

To achieve these goals, the Prosecutor noted that she was sending a team from her Office to Nigeria “to further engage with the authorities and encourage the prevention of crimes.” She forcefully stated, “[n]o one should doubt my resolve, whenever necessary, to prosecute individuals responsible for the commission of ICC crimes.”

Following the Prosecutor’s February 2 statement, the Nigerian electoral commission announced that it was postponing the elections until March 28, 2015. The commission said the postponement was necessary because troops needed to protect polling stations in northern Nigeria, which had been diverted to address an upsurge of violence by Boko Haram. The postponement has met with diverse reactions in Nigeria and elsewhere. While some view it as necessary to prevent the disenfranchisement of voters in the north, others suspect it is part of an effort to keep the current government in power.

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