Criminal Law

The Cost of Transparency

TLR BLOG

By Jake Falk

This paper was originally written in January 2022 as part of an independent research assignment.

            On May 25, 2020, during the course of an arrest, George Floyd was murdered by Minneapolis police officer, Derek Chauvin.[1]  While Mr. Floyd was handcuffed on the ground, Officer Chauvin placed Mr. Floyd in a restraint by kneeling on the back of his neck.[2]  A bystander recorded a video which showed Officer Chauvin’s knee on the back of Mr. Floyds neck for almost ten minutes.[3]  After several minutes, Mr. Floyd stopped moving, became unresponsive, and was taken to a local hospital where he was pronounced dead.[4]  It was later determined that Mr. Floyd’s death was caused by Officer Chauvin’s restraint, which caused him to suffocate.[5]  Throughout Officer Chauvin’s nineteen-years with the Minneapolis Police Department, there were twenty-two complaints filed against him.[6]  The nature of those complaints ranged from offenses, such as showing up late to work, to using excessive force.[7]

            George Floyd’s death sparked nationwide and even global protests.  People across the United States were calling for change in police practice and for more accountability on the part of police officers.[8]  Protesters and civil rights groups demanded more transparency into the nations police agencies and legislators at all levels were quickly pressured by the public to consider police reform, as well as implement or change current laws, particularly in New York. [9]  On May 28, 2020, three days following Mr. Floyd’s death, New York lawmakers gathered to vote on a bill that would ultimately repeal Civil Rights Law § 50-a,[10] a law that made police personnel records confidential. Once the committee approved the bill, it was sent to both the Senate and the Assembly where the proposed bill was passed on June 9, 2020.[11]  Then, on June 12, 2020, only eighteen days following the death of Mr. Floyd, Governor Andrew Cuomo signed the bill, thereby repealing Civil Rights Law § 50-a.[12]

            Although the repeal of Civil Rights Law § 50-a was supported by many, it was rushed and failed to consider all the consequences it would have on the criminal justice system and the legal system as a whole.  Section II of this paper will explain what Civil Rights Law § 50-a was prior to its’ repeal and will explore the legislature’s intent when it was first enacted.  Section III will then expand on why the law was ultimately repealed and Section IV will analyze the effect of its’ repeal, using a case law analysis.  This will be followed by a discussion of what is included in police disciplinary records and what amongst those records can be used for impeachment purposes.  Section VII will address the overarching question of whether all findings in disciplinary records provide defense attorneys with a good faith basis for impeachment.  Finally, Section VIII will draw the conclusion that the rush to repeal Civil Rights Law § 50-a, resulted in legislature failing to consider how the repeal would affect the prosecution’s discovery obligations under the newly enacted discovery laws put into effect on January 1, 2020, six months before §50-a was repealed.

Read or download the full text of the article below.

TheCostofTransparency-2Download

[1] Jerry Holt, George Floyd is Killed By A Police Officer, Igniting Historic Protests, History (last updated June 25, 2021), https://www.history.com/this-day-in-history/george-floyd-killed-by-police-officer.

[2] Id.

[3] Id.

[4] Id.

[5] Witness Contact Form at 3, State of Minnesota v. Derek Michael Chauvin, 2020 Minn. Dist. LEXIS 443 (Aug. 28, 2020) (No. 27-CR-12646, 27-CR-20-12949, 27-CR-20-12953, 27-CR-20-12951).

[6] Kim Barker & Serge F. Kovaleski, Officer Who Pressed His Knee on George Floyd’s Neck Drew Scrutiny Long Before, N.Y. Times (last updated Mar. 29, 2021), https://www.nytimes.com/2020/07/18/us/derek-chauvin-george-floyd.html.

[7] Id.

[8] Patrice Taddonio, George Floyd’s Murder and Police Accountability, One Year Later: Our Coverage, at a Glance, FrontLine (May 25, 2021), https://www.pbs.org/wgbh/frontline/article/george-floyd-murder-one-year-later-police-accountability.

[9] Nicquel Terry Ellis, Activists see progress after George Floyd’s death but say more must be done, USA Today (last updated Aug. 24, 2020), https://www.usatoday.com/story/news/2020/08/23/black-lives-matter-reforms-stalled-3-months-after-george-floyds-death/3337330001.

[10] NY S.B. 8674 (2020).

[11] Id.

[12] Id.

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PODCAST: Selling Sex: (More) Evidence for Decriminalization

TLR BLOG

Listen to our latest podcast where Mr. Block discusses his co-authored publication Selling Sex: (More) Evidence for Decriminalization. Mr. Block discusses analyzing sex work from the point of view of the same labor economics that would be applied to any other industry, rather than as a romanticized or demonized group of sexual deviants, finding destigmatization of the sex work industry as central to the increased agency and well-being of sex workers and their clients. The full text of Faelynn Carroll and Mr. Block’s article can be found here.

Brought to you by the Touro Law Review. 

Our guest today is Walter Block.

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PODCAST: Cyber Searches, Plain View, and Officer Inadvertence – with Michelle Zakarin

TLR BLOG

As the age of technology has taken this country by surprise, many courts are forced to adapt by applying pre-technology rules to new technological scenarios. One illustration is the plain view exception to the Fourth Amendment. Recently, the issue of officer inadvertence at the time of the search, a rule that the United States Supreme Court has specifically stated is not required in plain view inquiries, has been revisited in cyberlaw cases. It could be said that the courts interested in the existence of officer inadvertence, despite its lack of necessity, are properly doing so as a means of analysis for cyber cases to more suitably adjust to the searches of computers and related technology. The Tenth Circuit has knowingly disregarded Supreme Court precedent, and this continues its disagreement with the Fourth Circuit and perpetuates a circuit split that should be resolved by the Supreme Court.

Brought to you by the Touro Law Review. 

Our guest this episode is Professor Michelle Zakarin.

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Does Scottsboro Still Matter? What Being Different, Poor, or Black Means for Victims and Defendants in a Post-Scottsboro American South.

TLR BLOG

This paper was originally written in January of 2020 for Professor Lawrence Raful’s course “The Scottsboro Boys: Racism and American Law” at Touro Law Center.

By Georgia D. Reid, Online Editor of the Touro Law Review

The Scottsboro Boys – source: history.com

The Scottsboro case is one that changed the landscape of American jurisprudence forever.  It is a case that highlights extreme divides between races, genders, and territories in America.  While the events that led to the trials took place in 1931, there are still many pressing issues brought up in Scottsboro that remain important today, nearly a century after the fact.  There is still a racial divide in the American justice system, as well as a class divide.  And the unique history and culture of the American South creates an environment where this divide exists at its widest. 

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Book Review: Errol Morris, “A Wilderness of Error”: Provocative but Unpersuasive

TLR BLOG

By Richard C. Cahn*

In light of the inauguration of President Joseph R. Biden, the Touro Law Review will soon publish a timely article, “Restoring Trust in the Judiciary: a Critical, High-Priority Project for the Biden Administration,” by Richard C. Cahn, who served as a member of the Touro Law Center Board of Governors and taught Professional Responsibility at Touro for many years. Mr. Cahn practiced law in Suffolk County for 60 years and served as President of the Suffolk County Bar Association. His book, “Making Law: A Memoir of Good Times,” was published last April, and includes a suspenseful chapter about how extraordinary legal proceedings forced a reluctant Department of Justice to charge Green Beret Captain Jeffrey MacDonald with the murder of his pregnant wife and two small daughters at Ft. Bragg, N.C. in 1970. In 2013, the Law Review published Mr. Cahn’s review of “A Wilderness of Error,” by Errol Morris, which attempted to raise doubts about MacDonald’s guilt, a book that Mr. Cahn described as “Provocative but Unpersuasive.” Last November, a five-part series with the same title was released by FX Networks, piecing together the evidence to argue that MacDonald was indeed guilty.

In light of both the recent publication of Mr. Cahn’s memoir and the revived interest by the public in this controversial case, the Touro Law Review Blog now republishes his 2013 review.

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In General Public Use: An Unnecessary Test to Determine Whether the Use of Advanced Sensing Technology was a Fourth Amendment Search

TLR BLOG

By Mike Petridis

I.       Introduction

Kyllo v. United States[1] created a rule with an unnecessary test that allows a home, a person’s castle, to be searched without a warrant.  The Kyllo rule states: “[O]btaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area’ constitutes a search — at least where . . . the technology in question is not in general public use.”[2]  This rule was intended to be forward-looking and anticipate future technology.[3]  However, the “general public use” test is a loophole that can be used by law enforcement officers to conduct warrantless searches of homes in violation of Fourth Amendment principles.

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Criminal Usury and Its Impact on New York Business Transactions

TLR BLOG

By Christopher Basile

I.       Introduction

Choice-of-law provisions may bypass state statutes implemented to protect the general public and they may also reduce the effectiveness of the state’s legislative intent.  A choice-of-law clause is a provision in a contract where the parties choose a state’s law to govern any conflicts or disputes that may arise between the parties.[1]  Companies may implement choice-of-law clauses in their contracts to avoid statutes or regulations of various states.[2]  Many companies use choice-of-law provisions to intentionally avoid New York laws and regulations.  Companies attempt to avoid a series of criminal usury statutes in New York.  Usury is defined as an illegal rate of interest that may be charged on a financial instrument.[3]  In conclusion, many companies intentionally try to avoid New York’s criminal usury statutes through the use of choice-of-law provisions.

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