Archive for the ‘Current Events in Criminal Law (national)’ Category

DSK found not guilty in French criminal trial

Friday, June 12th, 2015


Former International Monetary Fund chief Dominique Strauss-Kahn was acquitted on June 12, 2015 of “aggravated procurement” (or “aggravated pimping”) by the criminal court in Lille, France. He was facing up to 10 years life imprisonment and a 1.5 million euros fine for his alleged role in a French prostitution ring.

Conforming with the prosecutor’s recommendations to drop the charges and to acquit him, Judge Bernard Lemaire held that Dominique Strauss-Kahn was only behaving as a customer, which is not illegal under French criminal law, and that there was no evidence he was an instigator of the parties.

The results were similar for the thirteen other defendants, among whom were several businessmen, a lawyer, a former chief police, and a notorious owner of an escort bar. They were all acquitted but René Kojfer, former head of public relations at the Carlton Hotel, who was convicted to a one-year suspended prison sentence for procuring, but not aggravated.

Although this ruling puts an end to a three year case, the wide media coverage and the fame of some defendants brought to light several legal issues raised by the unusual facts of the story.

Indeed, the trial turned into a vast debate on ethics and morals in France, and more specifically on prostitution and prosecution of sexual offenses. Defense lawyers have been expressing that the current offenses are outdated, while victims representatives also seem to think the laws are incomplete. This case has allowed to reopen public discussions on these matters, and especially showed how the offense of procurement is not well defined and needs to be edited.

Coincidentally, the ruling took place on the same day that the French Parliament was debating a bill intended to reinforce the fight against prostitution, suggesting on the one hand to criminalize promoting by setting a fine of 1,500 euros for clients, but on the other hand to decriminalize soliciting by removing a 2003 offense. The bill has been shuttling between the two houses of Parliament since 2013, and if it was approved by one house, it is likely to be rejected for the second time by the other one.

The author of this post, Camille Brusley, is a French law school graduate currently working as a legal intern for Galluzzo & Johnson LLP in New York. Matthew Galluzzo is a French-speaking attorney at that firm and routinely represents French citizens accused of crimes in New York. 


Illicit student-teacher relationships and the law in New York

Tuesday, June 9th, 2015

News reports of high school teachers engaging in illicit acts with underage students are becoming almost routine and regular nowadays. The advent of modern smartphones, the prevalence of texting, Snapchat, and the rise of social media platforms have perhaps facilitated these problematic relationships. Regardless, a teacher accused of having engaged in such inappropriate relationships faces a potential litany of terrible consequences including permanent criminal convictions, sex offender registration, public humiliation and vilification, loss of career and professional licensure, and civil lawsuits for damages. It is thus absolutely critical that those educators accused of such crimes retain competent counsel to guide them through these minefields.

A typical serious charge in these scenarios is Rape in the Third Degree (Penal Law Section 130.25[2]). That charge makes it a Class E felony for a person over the age of twenty-one years to engage in sexual intercourse with another person less than seventeen years old. This is a strict liability crime and there is no need for the prosecutor to demonstrate any forcible compulsion on the part of the elder person. A conviction for this charge – sometimes referred to as “statutory rape” – carries serious potential jail sentences and mandatory registration as a sex offender. Similarly, Criminal Sexual Act in the Third Degree (Penal Law Section 130.40[2]) makes it a Class E felony for a person older than twenty-one to engage in oral or anal sexual contact with a person under the age of seventeen.

Rape in the Second Degree (Penal Law Section 130.30[1]) is a more serious Class D felony and applies to individuals over the age of eighteen that engage in sexual intercourse with people younger than fifteen years old, and Criminal Sexual Act in the Second Degree (Penal Law Section 130.45[1]) also makes it a Class D felony for a person older than eighteen to engage in oral or anal sexual contact with a person younger than fifteen.

On some occasions, the adult educators are accused of sending lewd or sexually explicit photos, videos, or text messages to the underage students. Those teachers are then potentially facing felony charges of Disseminating Indecent Materials in the Second or First Degree, depending on the content of the messages (Penal Law Sections 235.21 or 235.22).

Sometimes, teachers partake of controlled substances like ecstasy prior to engaging in sexual contact with their underage students, and in those cases, the teachers may face the Class D felony charge of Facilitating a Sex Offense with a Controlled Substance, in violation of Penal Law Section 130.90.

On the other hand, the victimized students can potentially pursue civil lawsuits for damages against the school districts and the teachers themselves. (Of course, the lawsuits against the school districts are more likely to be lucrative because they have insurance and public funds to pay settlements, whereas teachers often become bankrupt in these situations.) There is no need to prove that the underage victim was an “unwilling participant” in the sexual activity because a minor cannot legally consent to sexual contact with an adult. A lawsuit by a victimized student against a school district will not succeed solely because the offending teacher was employed by the district – the victim plaintiff must demonstrate that the district was negligent in the hiring of the teacher (i.e. failed to do a sufficient background check that would have revealed a propensity for such offending behavior), negligent training, negligent retention (failing to discharge the teacher after learning about misconduct prior to the basis for the lawsuit), and/or negligent supervision of the teacher. In short, if the district had reasonable no way of knowing, predicting, or preventing the behavior by the teacher, then the district cannot be held to blame for the teacher’s actions towards the student. The amount of damages can be difficult to predict but is mostly determined by the psychological or psychiatric harm that the student has suffered or can expect to suffer as a result of this victimization.

If you or a loved one have been accused of an improper relationship with a student, or been victimized by a teacher, you should strongly consider contacting the experienced litigators at Galluzzo & Johnson LLP. Their team of former prosecutors, including Matthew Galluzzo, a former Manhattan sex crimes prosecutor, has expertise representing people on both sides of this scenario, and can advise you how to best proceed.

Criminal defense of professional athletes in New York

Monday, June 8th, 2015

The criminal defense attorneys at Galluzzo & Johnson LLP have successfully defended professional athletes against criminal charges in New York City, and have been asked to comment on television and in the news as experts in criminal cases pending against professional athletes such as Ray Rice and Oscar Pistorius. They also understand the unique issues facing professional athletes accused of crimes, such as visa issues, contractual issues, and negative publicity.  As such, they are uniquely qualified to represent professional athletes facing criminal cases in New York

Many professional athletes belong to player unions that have labor contracts with their professional sports leagues that dictate suspension procedures for violations of the player conduct rules. (For example, the NBA Collective Bargaining Agreement requires individuals convicted of felony violence to receive minimum suspensions of ten games.)  These agreements can sometimes be used to persuade prosecutors to permit plea bargains to lesser offenses so as to avoid these bright-line career penalties that can be unduly harsh.  Additionally, sentences that include probation can be impossible for professional athletes that are required to train and compete across the country.

In addition, there are frequently immigration (and therefore, career) consequences for professional athletes.  Many foreign professional athletes are able to live and work in the United States pursuant to P-1A visas, and these visas can be jeopardized by criminal arrests and convictions. As the go-to criminal defense attorneys for the New York consulates of France, Australia, Switzerland, Belgium, and Saudi Arabia, Galluzzo & Johnson routinely represents foreign citizens and has represented foreign professional athletes. Unlike many criminal defense attorneys, their lawyers are acutely aware of the potential immigration and visa consequences of criminal cases, including the lesser-known consequences, and can help foreign athletes successfully navigate the criminal justice system in such a way as to avoid jeopardizing their playing careers.

Finally, the arrests of professional athletes are almost always publicized. This negative publicity can not only make it more difficult to negotiate favorable plea bargains, but it can also seriously decrease an athlete’s earning potential and endorsements.  The criminal defense attorneys at Galluzzo & Johnson LLP can help an athlete minimize the negative publicity with a well-orchestrated media strategy, as they have appeared on television and in the news countless times (and in the case of Matthew Galluzzo, in multiple languages).

If you or a loved one are a professional athlete facing criminal charges in New York, you should seriously consider retaining the services of the former prosecutors and experienced criminal defense attorneys at Galluzzo & Johnson LLP.  Their team has successfully represented professional athletes in the past and understands the unique collateral consequences of an arrest for a professional athlete.

Criminal assault charges for non-citizens in New York

Monday, June 8th, 2015

Criminal assault charges for non-citizens in New York

As the go-to criminal defense firm for the New York City consulates of France, Australia, Saudi Arabia, Switzerland and Belgium, the attorneys at Galluzzo & Johnson LLP routinely represent foreign citizens charged with criminal assault (including, for example, Assault in the Third Degree [Penal Law 120.00], Assault in the Second Degree [Penal Law 120.05], and Assault in the First Degree [Penal Law 120.10]). These charges are especially problematic for non-citizens as they can result in deportation or future inadmissibility into the United States.

(Though this is a bit of an oversimplification, deportation is the process by which a person is forcibly removed from the United States and barred from returning, whereas a person determined to be “inadmissible” cannot enter or re-enter the United States after leaving).

A non-citizen convicted of a “crime involving moral turpitude” within the first five years of admission is deportable. See Immigration and Naturalization Act (“INA”) Section 237(a)(2)(A). The most common New York criminal assault charge, Assault in the Third Degree, applies where a person intentionally causes physical injury to another person (Penal Law Section 120.00), and is often brought in cases involving domestic violence or drunken bar fights. Courts – including the Board of Immigration Appeals and the Southern District of New York – have routinely concluded that Assault in the Third Degree is in fact a “crime involving moral turpitude.” See e.g. In re Solon, I & N Dec. 239, 243 (2007); Mustafaj v. Holder, 369 Fed. Appx. 163, 167 (2nd Cir. 2010) (citing In re Solon, supra). As such, a conviction for Assault in the Third Degree within the first five years of admission would represent a “crime involving moral turpitude” and would render the person deportable.

The felony assault charges in New York (Assault in the Second Degree [Penal Law Section 120.05] and Assault in the First Degree [Penal Law Section 120.10]) can also render a convicted person deportable on multiple other grounds, including but not limited to classification as “aggravated felonies,” “crimes of violence,” and/or “domestic violence crimes,” potentially. Non-citizens charged with these felony assault charges should also avoid traveling outside the United States pending the disposition of these cases, as immigration officials might conclude that the accusations alone are sufficient to permanently deny those individuals re-entry into the United States.

Finally, a conviction for a misdemeanor “counts” for deportation purposes regardless of whether there is a re-pleader situation. In fact, courts have upheld deportation orders where the convictions at issue (by guilty plea) were even later vacated in the interest of justice. Saleh v. Gonzales, 496 F.3d 17, 25 (2nd Cir. 2007) (“…an alien remains convicted of a removable offense for federal immigration purposes when the predicate conviction is vacated simply to aid the alien in avoiding adverse immigration consequences and not because of any procedural or substantive defect in the original conviction…”). This issue frequently arises in cases involving non-citizens trying to participate in judicial diversion programs. See e.g. People v. Brignolle, 41 Misc.3d 949 (Sup. Ct. N.Y. County, 2013) (Weinberg, J.). In short, what matters for immigration purposes is the original allocution, so non-citizen defendants charged with Assault in the Third Degree should be wary of re-pleader plea bargain offers where the original allocution is to a misdemeanor.[1]

Ideally, a non-citizen charged with a misdemeanor assault charge will get the charges dismissed by a prosecutor or dismissed at trial. Otherwise, plea bargains involving violations like Disorderly Conduct (Penal Law Section 240.20), Harassment in the Second Degree (Penal Law Section 240.26), or adjournments in contemplation of dismissal (ACDs) may be viable options, often with restitution payments, community service, counseling, or a combination of those things. Non-citizens should be warned about the possible consequences of an open ACD with respect to the renewal or obtaining of American visas.

If you are a foreign citizen facing criminal assault charges in New York City, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP. In addition to their fluency in French, they are very familiar with the immigration consequences of assault charges and are especially qualified to help you navigate the unique challenges facing foreign citizens accused of assault. They have successfully represented numerous foreign citizens charged with assault and are prepared to assist you or your loved ones in safeguarding their futures in the United States.

[1] See Saleh v. Gonzales, supra, at fn 6. A conviction is defined as: “[A] formal judgment of guilt of the alien entered by a court of, if adjudication of guilt has been withheld, where – (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” 8 U.S.C. § 1101(a)(48)(A).

Visas and pending criminal cases and ACDs

Monday, June 8th, 2015

Frequently, non-citizens seeking American visas or renewal of current ones make the mistake of accepting seemingly excellent criminal dispositions without understanding the immigration consequences. For example, people arrested in New York for misdemeanor charges such as possession of marijuana (PL 221.05 or PL 221.10), trespass (PL 140.05 or 140.10), theft of services (PL 165.15), petit larceny/shoplifting (PL 155.25), or possession of a controlled substance (PL 220.03) often receive adjournments in contemplation of dismissal (“ACDs”) at their first court appearances.  Under those scenarios, the case is automatically dismissed after a period of six months, assuming certain conditions are met.  However, many non-citizens make the mistake of accepting these otherwise favorable dispositions (typically upon the advice of counsel) without recognizing that an American visa cannot be obtained or renewed during the six months “probationary period” of an ACD.

The attorneys at Galluzzo & Johnson LLP regularly represent foreign citizens charged with misdemeanors in New York courts. As criminal counsel to the French Consulate and a regular representative of the nations of Belgium, Switzerland, Australia, and Saudi Arabia, their lawyers understand that a regular ACD cannot be accepted by some foreign citizens in cases in which it would be perfectly acceptable for citizens to accept them. The attorneys at Galluzzo & Johnson LLP have been successful on many occasions in convincing prosecutors to dismiss charges early in the interest of justice, so that people that have encountered minor arrests in New York can stay in New York, get visas to attend university, or continue to work in New York.  If you or a loved one are a non-citizen facing criminal charges in New York (or if you made the mistake of accepting an ACD that you shouldn’t have accepted), you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP. Their multilingual attorneys can help you navigate the confusing issues facing non-citizens attempting to live, study and/or work in the New York while confronting criminal charges.


Defense Attorney explains drug crimes on the “Dark Web”; Silk Road etc.

Monday, June 1st, 2015

The New Frontier of Drug Crimes: Silk Road, Agora, and the Dark Web

The traditional business model of drug trafficking, though potentially lucrative, is fraught with peril and obstacles for its participants at all levels. Thanks to fantastic television programs like The Wire and Breaking Bad, many Americans already have a basic understanding of this business model: Transactions are conducted using cash, and regulatory safeguards at banks and other institutions make it difficult for dealers to use their income to make large purchases (thereby necessitating the risky business of money laundering). Transactions are also generally made face-to-face and hand-to-hand, meaning that the dealers and buyers can be fairly easily identified or apprehended by law enforcement.

These sorts of traditional drug dealing operations use levels and levels of intermediaries to protect the chiefs from being directly implicated, but law enforcement officers have routinely been able to force low- and medium-level dealers to “snitch” on their suppliers. Moreover, this business model’s need for a human being to personally deliver contraband makes the buyers and sellers potentially subject to violent acts by thieves or competitors.

It should come as no surprise then that many savvy and enterprising criminals took to the nether world of the “Dark Web” (or “Dark Net”) to traffic narcotics (and sometimes even weapons) at online markets like Silk Road (then Silk Road 2.0) and Agora, among others. These online markets provided solid anonymity for buyers and sellers of drugs because they are accessible only through the Tor browser (Tor = The Onion Router), a software program designed to disguise the IP address (and thus the physical presence) of a person browsing online. Buyers and sellers can connect anonymously on these markets using Tor in a way that makes it extremely difficult for law enforcement to track the IP addresses (and thus, the physical locations and true identities) of the participants.Though Silk Road was shut down by law enforcement, and other sites continue to be closed, new ones inevitably crop up to replace them.

Also, the buyers and sellers on these websites aren’t using credit cards or cash – they’re generally using BitCoin. This online and anonymous digital currency has been highly controversial and is illegal in some countries, though it is currently legal in the U.S. and becoming subject to increasing regulations. (NOTE: The author of this article has significant experience representing a person accused of criminal activity involving the use of now-defunct precursor online currencies called Webmoney and egold.). There is no question that cryptocurrencies like Bitcoin are absolutely critical to the survival of these marketplaces, as these transactions could not possibly be consummated without it.

Moreover, consumers of narcotics and designer drugs frequently find the experience of buying from these sorts of online suppliers to be safer and easier than the traditional alternative. First, the buyer doesn’t have to personally meet an unsavory criminal in his home or some other dangerous place where he risks being caught. Second, the market offers easy price comparisons amongst sellers – it’s practically an eBay or Travelocity for drugs. (Note: Federal Judge Katherine Forrest, in denying Ross Ulbricht’s motion to dismiss the pending indictment against him, described the now defunct Silk Road as being like eBay).

Of course, because of the anonymity involved, a buyer can be easily ripped off on one of these sites – that is why buyer reviews are such an important part of these new markets. Sellers have to develop and maintain a reputation for trustworthiness among users, and that can be hard to do in an environment where buyers cannot possibly hold the seller personally accountable for defrauding them.

The hosts of these marketplaces can also fairly effectively disguise their anonymity. Ross Ulbricht a/k/a Dread Pirate Roberts, is easily the most notorious such alleged host, and was arrested last year after a length federal investigation. The U.S. federal government contended that for years he hosted the Silk Road online market (technically a portal accessible only via Tor browsers), and took commissions on thousands of drug-related sales totaling millions of dollars in Bitcoin. Ultimately, after a trial before Judge Forrest, Ross Ulbricht was convicted of numerous crimes and sentenced to life in prison.  

The weaknesses in these modern operations generally arise in the delivery system. Private shipping companies like FedEx and DHL do not need search warrants to open suspicious packages. Accordingly, dealers tend to prefer to use shady offshore delivery services or USPS, whose agents must have federal search warrants to open suspicious packages. In the event that an illicit package is intercepted by a courier, federal agents often attempt to deliver the package to its intended recipient in a “controlled buy”: essentially, the federal agent poses as a delivery man and tries to get the recipient to sign for the package. Of course, most buyers in this market use “dummy drop” addresses, like mailboxes opened under pseudonyms, to receive these sorts of packages. Ultimately though these measures don’t really prevent law enforcement from waiting at the “dummy drop” location and simply arresting the person when s/he picks up the package.

Most dealers sending narcotics via courier do not use actual return addresses, of course, or pay for the postage with anything other than cash. Federal agents might be able to trace the drop off point of an intercepted package, but unless there is good archived video surveillance footage of the person making the drop at the courier’s drop off center, it is typically exceedingly difficult for federal agents to identify the person that mailed the package. Finally, dealers that use couriers have discovered a variety of vacuum-sealing techniques to make it especially difficult for courier companies or USPS to detect any illicit substances in the packages.

These sorts of cases are typically prosecuted in federal court. Notably, local law enforcement makes most of the drug trafficking related arrests in the U.S. – indeed, police officers do most of the heavy lifting in America’s War on Drugs. However, whereas cartels engaged in traditional drug dealing are routinely investigated by both state and local law enforcement, these new online Silk Road and Agora operations are generally just too complex for state law enforcement officers to penetrate; state law enforcement simply lacks the resources and the personnel to penetrate these operations, so it is up to the FBI and other federal law enforcement agencies alone to do the work. The author wouldn’t be surprised if the federal government soon starts seriously ramping up its own funding of this effort to combat the “Dark Net” or decides to give more money to local law enforcement agencies to develop the capabilities to assist them, but for the moment, in terms of sheer numbers and probabilities, there are probably fewer law enforcement officers chasing these modern dealers than there are officers pursuing traditional drug dealers on the streets.

That being said, the potential penalties for dealing drugs online can be significant. The most readily applicable charges would generally include violations of 18 USC Section 952 or any number of money-laundering and conspiracy charges.  Obviously, Ross Ulbricht, the founder of Silk Road, received life in prison for his criminal activities, though his appeal is pending. Also, sellers on Silk Road face a two-level enhancement under 2D1.1(b)(7) for “mass marketing” narcotics on the Internet, which buy itself can elevate a sentence by two years as opposed to traditional drug dealing.

If you or a loved have been arrested or prosecuted for a crime involving the purchase or sale of contraband or narcotics on Silk Road, Agora, or some other Tor-accessed portal, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP. Their team of former prosecutors has defended people accused of committing Internet crimes involving electronic currencies like Bitcoin and its precursors, as well as individuals accused of trafficking narcotics on the internet and Tor-accessed markets. This is a complex subject at the intersection of technology and criminal law that few criminal defense attorneys truly understand, so you should take pains to ensure that your criminal defense attorneys, like those at Galluzzo & Johnson LLP, truly understand the relevant issues.

PENAL LAW 220.77: Operating as a major trafficker or “kingpin”

Tuesday, May 19th, 2015

Operating as a major trafficker – NY’s “Kingpin” statute (Penal Law Section 220.77)

A few years ago, the New York Assembly enacted into law a tough new statute designed to increase the penalties for major narcotics traffickers or managers of drug trafficking organizations. Penal Law 220.77, oftentimes referred to as New York’s “kingpin statute,” makes it a Class A-1 felony offense to

  1. act as a director of a controlled substance organization during any period of twelve months or less, during which period such controlled substance organization sells one or more controlled substances, and the proceeds collected or due from such sale or sales have a total aggregate value of seventy-five thousand dollars or more; or
  2. as a profiteer, knowingly and unlawfully sell, on one or more occasions within six months or less, a narcotic drug, and the proceeds collected or due from such sale or sales have a total aggregate value of seventy-five thousand dollars or more; or
  3. as a profiteer, knowingly and unlawfully possess, on one or more occasions within six months or less, a narcotic drug with intent to sell the same, and such narcotic drugs have a total aggregate value of seventy-fie thousand dollars or more.

Notably, the statute sets forth especially severe penalties, even when compared to other Class A-I narcotics-related offenses. A person convicted of this offense – even one with no prior record – faces an indeterminate prison sentence anywhere from 15 years to life or 25 years to life.

Interestingly, it should be noted that under New York law, there is a big difference between controlled substances and narcotic drugs. Controlled substances include most every drug, but a narcotic drug is heroin and cocaine.

In calculating the values of the drugs, obviously a qualified police officer can attest to the average street value; in many cases however undercover officers purchase the drugs from the defendants or their associates, so the amount of money that was spent is the proof of the value of the drugs.

These cases typically arise after long-term investigations involving undercover police officers and police informants.  Oftentimes wiretap and other forms of electronic surveillance play a prominent role in developing these cases as well.

Defending these cases effectively regularly requires strong challenges to search warrants and electronic surveillance or “eavesdropping” warrants. Also, defense attorneys can sometimes effectively argue that although trafficking of narcotics may have in fact occurred, their particular clients played a minor or negligible role in the criminal enterprise.

One notable recent “kingpin charge” case in the news involved the arrest of several members of an organization allegedly in possession of over $2 million worth of heroin (70 kilograms).

If you or a loved one have been arrested for a major trafficking or “kingpin” charge, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP. Their team of former Manhattan prosecutors has worked on several cases involving major traffickers with an outstanding record of success.

Robert Durst: Is his confession admissible? Analyzed by a defense attorney and former prosecutor

Tuesday, March 17th, 2015

Robert Durst HBO Confession – Would it be admissible?


In a captivating HBO television episode, Robert Durst, long a suspect in several homicides, apparently confessed –unwittingly, perhaps – by muttering to himself in the bathroom while wearing a live microphone. Durst was promptly arrested by police and is currently facing extradition to California to face charges in connection with a murder in Beverly Hills.

The question currently being debated amongst lawyers in the media is whether this recorded audio confession would be admissible against Durst in a trial for the Beverly Hills murder of Ms. Berman. The short answer is yes, probably.

In order for the prosecution to use evidence against a defendant, a proper evidentiary foundation has to be established. So, in this case, the prosecution would first have to demonstrate that the recording was authentic, meaning that it was in fact what it purported to be (i.e. a recording of Mr. Durst’s voice taken while he was in the bathroom). Witnesses would have to testify as to how the recording was obtained and how it was handled prior to being played in court. It is seemingly safe to assume that this foundation could be established without too much trouble.

Out-of-court unsworn statements are also assumed to be inadmissible unless they fit into one of the “hearsay exceptions”. There are a multitude of possible exceptions to the hearsay rule, but here, the statement clearly falls within the category of a “statement against penal interest,” meaning that it tends to incriminate the person who made the statement. Accordingly, there would not be any hearsay problem with the admissibility of the statement.

The biggest question in this case, however, is whether this statement was obtained in violation of Mr. Durst’s constitutional rights. American courts apply a principle called the “exclusionary rule” which holds that any evidence obtained (including statements taken) in violation of a defendant’s constitutional rights cannot be used against him at a trial. The exclusionary rule exists to prevent police officers from engaging in unlawful conduct, and to protect the constitutional rights of citizens. Thus, prior to any evidence of statements being presented to a jury, a judge is tasked with screening the proffered evidence in a pre-trial hearing to determine whether it was lawfully obtained.

Most problematically for Durst is the fact that this evidence was not obtained by police officers. The exclusionary rule is designed to prevent government agents from violating the constitutional rights of citizens, but does not apply to private actors. For example, police cannot search a suspect’s house without a warrant and then use the illegal evidence that they found inside – it would be “fruit of the poisonous tree” of their illegal conduct. On the other hand, if a private citizen voluntarily and without coordination with the police decides to search his neighbor’s house and find evidence therein, that evidence could be used by police against the neighbor.

The lines get blurred when private actors are working in coordination with law enforcement. If Robert Durst’s attorneys could show that the journalists from HBO were deliberately and consciously working with police pursuant to a coordinated plan to obtain a confession from Durst during the television interview process, then maybe the attorneys could establish that those HBO journalists were acting as “state actors” for purposes of admissibility analysis, meaning that the constitutional limitations would apply to their conduct. Normally, though, the threshold showing for “state action” is very high, and I seriously doubt that the amount of coordination required for a private actor to be considered a “state actor” is going to be shown to have existed in this case. Without a finding of state action, there would simply be no problem with the admissibility of this confession.

As an illustration of this state actor concept, consider Batman in the movie “Batman Begins.”  At the beginning of the movie, Bruce Wayne buys some fancy vigilante gear and runs around catching criminals and delivering them to the police in handcuffs. The police have no idea who Batman is or how to get in contact with him. Batman, at this point, is not a state actor because he is not working with the police, he is working on his own. As such, any evidence obtained by Batman against the defendants “in violation of the U.S. Constitution” would still be admissible in court proceedings against those defendants (assuming the proper evidentiary foundations could be laid by Batman as a testifying witness). Later, however, Commissioner Gordon installs the Batsignal on the roof of the police precinct and asks Batman for help in catching the Joker. At this point, Batman is a state actor, which means that any confessions elicited by Batman from the Joker in violation of Joker’s constitutional rights would hereby be inadmissible at a later trial. Thus, the question for Robert Durst would be: were the HBO journalists acting more like Batman at the beginning of the movie (pre-Batsignal) or more like Batman at the end of the move (post-Batsignal)?

An interesting case that provides an example of this “state actor” analysis in the television context is Fisk v. Letterman, a civil rights case in which David Letterman’s alleged stalker claimed that producers from CBS conspired with police to deprive the stalker of her constitutional rights.

Even if Durst’s attorneys manage to convince a judge that the HBO journalists were acting as state actors, the next question would be: did they do anything in violation of Durst’s constitutional rights? This would again be a very difficult argument for Durst’s attorneys to win. To be sure, there have been some cases in which police officers were able to obtain recordings of conversations by suspects using elaborate recording and long-range microphonic technology, and the statements obtained in that manner were deemed inadmissible because they were obtained in violation of the suspects’ “reasonable expectation of privacy”. See U.S. v. Silverman. However, notwithstanding the fact that Durst apparently forgot that he was wearing a live microphone in the bathroom, there was nothing surreptitious about this recording. Durst wore a microphone for every interview and watched the journalists pin the microphone on him. There is also some evidence that the producers had to previously remind Durst not to forget to take his microphone off before walking away from interviews. Durst should have known that he might have been wearing a live microphone when he uttered the incriminating statements. But at the end of the day, the question is not whether Durst said something stupidly and clumsily, but whether the “state actor” journalists acted unfairly. That’s basically an impossible argument for Durst’s attorneys to make successfully.

Noah Feldman, a professor at Harvard Law School, has opined that the statements would be inadmissible because they “were more prejudicial than probative.” It is true that judges have to engage in that analysis before deciding whether to admit a piece of evidence. However, this argument for inadmissibility is basically just absurd. In a nutshell, the argument is that because Durst confessed to committing multiple murders, it would be unfair to present this statement to a jury in a trial concerning just a single murder. Put another way, a jury is not supposed to hear about uncharged crimes not presently being considered by the jury, and this confession logically implicates him in more crimes than would be at issue. On the other hand, the probative value of this confession is clearly enormous: HE IS CONFESSING TO MURDER IN A MURDER CASE. Thus, the argument by Prof. Feldman is essentially 1) that it’s unfair to Durst to use a completely voluntary and damning confession against him because his confession was so breathtaking in its scope, and 2) that a confession to murder shouldn’t be presented to a jury because the confession doesn’t mean that he committed murder. With all due respect to Professor Feldman: that argument sounds good in lofty academia but would get you laughed out of any real courtroom in America. Also, to limit the prejudice against the defendant, a judge could (and would) give a limiting instruction to the jury explaining that they were not to consider the possibility that he had committed other crimes. This instruction seems illusory in some ways but it is routinely used in situations like this to solve these sorts of issues for purposes of appeal.

The author of this post, Matthew Galluzzo, is a criminal defense attorney and former Manhattan prosecutor currently defending someone against homicide charges in a case in which the purported victim’s body was never found.




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Understanding the criminal laws at issue in the DSK trial in France

Tuesday, February 10th, 2015

Former International Monetary Fund chief Dominique Strauss-Kahn is charged with “aggravated procurement” for his alleged role in a French prostitution ring, facing up to 10 years to life imprisonment and a 1.5 million euros fine.

The facts go back to 2012 when DSK – as he is widely known in France – was taking part in several parties held in hotel rooms all over the world (Lille, Madrid, Vienna, but also New York and Washington), where prostitutes were paid to sleep with the participants. The two week trial, which started on Monday, February 2nd, 2015, before a French court, involves no less than fourteen defendants.

In addition to the political and media tumult, this case is raising numerous legal issues.

DSK is facing charges of “proxénétisme aggravé”, which has been widely referred to as “pimping” but can more accurately be translated to “procurement” ; or more specifically in the state of New York to “promoting prostitution”, as stated under section 230.15 of the NY State Penal Law.

Prostitution is not illegal in France, but only so long as it remains a strictly personal choice and an individual activity. Neither having sex in exchange for a fee nor patronizing a prostitute are forbidden, but soliciting is.

Any form of coercion, procurement or organization is illegal. A parallel can be made to the laws of states in which marijuana is “legalized”: growing and possessing marijuana for one’s own consumption is allowed, but selling it or organizing a network of users would be illegal.

Furthermore, the definition of “proxénétisme” and assimilated offenses – articles 225-5 and following of the Penal Code – is very broad. It encompasses the act of “pimping” in the most common sense – employing prostitutes and taking a cut from their earnings – but also every act that would encourage prostitution, including unclear links to prostitution. As an example, even the spouse of a prostitute can be charged with this offense if he or she unable to justify his or her means, or merely by sharing life expenses. More surprisingly, a customer who would recommend his favorite prostitute and give her or his number could fall under the scope of the law too.

Additionally, this offense does not even require a venal aspect, and the lack of any financial profit from prostitution does not prevent a court from charging someone. A mere assistance, putting two persons in contact, providing a location, or any profit of any kind, is enough under this law.

It clearly seems that the level of involvement is different for each defendant, as some are being charged with a more traditional form of procurement (e.g. the notorious pimp Dominique Alderweireld – aka Dodo la Saumure), and some being only linked to the prostitution ring for their remote assistance or unclear profit, such as is the case of the charges being leveled against DSK.

Finally, under French criminal law, offenses are said to be aggravated when they are committed under certain circumstances which are considered to worsen the offense, therefore increasing the maximum sentence. In this case, the offense is said aggravated because it was committed in a group, involving different perpetrators acting as authors and/or accomplices.

These rules combined thus explain the charges of “proxénétisme aggravé”.

Assuming that these charges are accurate under French law, the next obvious question is whether they are typically brought, or whether they hide a political motive of the prosecutors or courts.

When taking a look at the number of defendants and the breadth of the network, it definitely appears it could be organized prostitution and procuring. Nonetheless, with regard to DSK alone, the facts seem to be a mere customer case, and that is the reason why the prosecution was calling for a dismissal of his case.

One of the particularities of this case is that some of the other defendants were the ones organizing the parties and paying for the prostitutes. DSK is not alleged to have ever paid the women with whom he had sex. This particularity can lead to two different outcomes.

DSK does not deny having had sex with women at these parties, but he claims that he did not know at the time that they were prostitutes. If the prosecution, who bears the burden of the proof, does not manage to establish this knowledge, DSK cannot be convicted of procuring because this offense requires a showing of intent. Proving he did not know is obviously more difficult since he did not pay.

On the opposite, if DSK is proven to have been aware the women were prostitutes, the fact that the parties were organized for him and that he did not pay becomes an issue. Indeed, he would then not be a classic client of prostitution, which would be perfectly legal but would involve paying for the service. In that hypothesis, he would not have paid the women and therefore would have knowingly benefited from the prostitution of another person, and therefore his conduct would fit one of the definitions of “proxénétisme”.

The trial against DSK is without a doubt unusual, but then again it is also uncommon to have numerous huge parties organized for you where prostitutes are offered to you free of charge, one could argue. Nevertheless, it seems fairly obvious that the charges are unusual enough, and the evidence scant enough, for one to suspect that the pursuit of DSK on these charges is largely politically motivated.

Credit: Camille Molina, éléve-avocat of the Paris bar.

What would have happened to the Charlie Hebdo terrorists: a summary of French criminal procedure in terrorism cases

Thursday, January 22nd, 2015

On January 7th 2015, two gunmen launched a terrorist attack on the French satirical magazine Charlie Hebdo in Paris, shooting dead twelve people and injuring many others. Among those killed were four well-known cartoonists, staff of the weekly and two police officers.

This extremist Islamic attack took place almost 3 years after the magazine had published caricatures of the Prophet Muhammad.

The two men managed to flee the premises by car, but were later identified as Said and Cherif KOUACHI. The identity of a third man, Mourad HAMYD, was also broadcast as allegedly linked to the events. However after this man turned himself in, he was later released and his case dismissed.

The police kept searching for the Kouachi brothers before eventually killing them two days after the attack in the printing complex where they had taken a hostage.

After these dreadful events, the question arises : what would the terrorists have faced in court if they had been caught alive?

The interesting point in this kind of case is that the facts fall into the legal classification of terrorism, defined as acts aimed at seriously disrupting public order by intimidation or terror.

These charges of terrorism lead to the application of a special procedure, unofficially referred to as “a second procedure”.

Firstly, whereas the usual rule of jurisdiction states the competent court is the one where the facts have taken place, all the cases including acts of terrorism charges fall within jurisdiction of the courts of Paris, and therefore have to be prosecuted and tried there.

Secondly, a more obvious difference is that the statutory time limits of any part of the procedure would be increased.

As an example, the alleged terrorists, like any offender who is arrested, would have been taken into custody, and instead of the 24 hours normally allowed (and renewable once), they could have been questioned for 144 hours.

Moreover, they would have had very different rights during that initial period of custody. The person held in custody would normally be able to ask for the assistance of an attorney. If asked for, the investigators have had to wait for the attorney at least 2 hours before they could start questioning the person in custody. When there are terrorism charges, however, the prosecutor can ask the court to delay the assistance of the attorney up to 72 hours.

For the most serious offenses, the ones where the sentences can be 10 years or more, the procedure of judicial investigation is mandatory. At the end of their initial custody period, if serious or convergent evidence had been collected, the alleged terrorists would therefore have had to have been brought before a “juge d’instruction”, a magistrate responsible for conducting this mandatory investigative phase that precedes a criminal trial.

The length of this procedure varies greatly from a case to another, depending on the charges, the complexity of the facts or the number of defendants. During this phase, the alleged offender, still presumed innocent, can be held in custody, for a maximum of 4 months in the less serious cases.

Once again, the procedure would have been quite different because of the terrorism charges. The maximum duration for which the defendant can be remanded in custody is 4 years and 8 months, bearing in mind that with charges of terrorism, a bail offer is highly unlikely.

At the end of the judicial investigation, either the judge has gathered sufficient evidence and refers the case to the court, or dismisses the case.

This case would have been referred to the ‘Assize’ court, which specializes in the most serious offenses. There, the procedure would also have been particular. Indeed, the composition of the court would have differed from ordinary cases, as there would have been no jury. The terrorism cases are brought before seven judges instead of three judges and six jurors.

The trial after follows the same rules as the usual procedure, and the defendant is either found innocent or guilty, although to convict in these cases, a simple majority of the judicial panel is needed instead of a two third majority as is typical in criminal jury trials.

In the end, if the two terrorists had been found guilty and convicted, they could have been sentenced to life imprisonment with mandatory jail term.

Even if the special procedure that applies to terrorism charges already makes the prosecution so much easier than in other cases, the Charlie Hebdo attack has nevertheless brought the idea of a “French Patriot Act” back to the forefront.

 Credit: Camille Molina-Brusley