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ECBAWM Files Amicus Brief in the Fourth Circuit Arguing Against District Court’s Holding on Sovereign Immunity

ECBAWM filed an amicus brief on behalf of Aziz Huq and Erwin Chemerinsky in the United States Court of Appeals for the Fourth Circuit today in support of Jane Roe, the appellant in Roe v. United States, et al. The brief argues that the District Court erred by holding that sovereign immunity bars Roe’s claims against federal officials in their official capacities seeking injunctive and declaratory relief. ECBAWM partners Ilann M. Maazel and Sam Shapiro authored the brief.

The brief can be read in its entirety here.

Article

Second Circuit: Forensic Examiner Not Entitled to Qualified Immunity

In a significant qualified immunity ruling, the U.S. Court of Appeals for the Second Circuit denied a state ballistics examiner’s motion to dismiss a 42 U.S.C. § 1983 civil rights lawsuit.

ECBAWM client Vernon Horn was incarcerated for over 17 years for a crime he did not commit. His wrongful conviction stemmed from exculpatory evidence that was concealed before and during trial: New Haven Police detectives hid phone records in the basement of a detective’s house because they did not support the case against Horn, and the Connecticut State Police ballistics examiner failed to disclose that he prepared a second ballistics report that falsely implicated Mr. Horn because the original report would have exonerated him.

Following their release from prison in 2018, Mr. Horn and his co-defendant Marquis Jackson brought civil actions against the City of New Haven and certain law enforcement officials for violating their constitutional due process rights under Brady v. Maryland.

The state ballistics examiner, James Stephenson, filed a motion to dismiss the lawsuits against him on the grounds that he is entitled to (a) qualified immunity for failing to turn over exculpatory evidence and (b) absolute immunity for preparing the second false ballistics report because he did so at the prosecutor’s direction. The U.S. District Court for the District of Connecticut denied Stephenson’s motion to dismiss and he appealed to the Second Circuit.

In upholding the lower court’s ruling and denying Stephenson’s motion to dismiss, the Second Circuit wrote that “no reasonable forensic examiner in Stephenson’s position” would have concluded that Brady did not apply. The Court also concluded, “The allegations here are consistent with [Horn’s] theory that Stephenson independently decided to manipulate the margin of error upon learning that the memo … would weaken the state’s case against [Horn].”

Vernon Horn is represented by ECBAWM lawyers Ilann Maazel and Nick Bourland along with co-counsel Doug Lieb and Tamar Birckhead.

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ECBAWM Wins Prison Release for Christopher Ellis, Who Served 30 Years After Being Wrongfully Convicted

On Monday, August 9, New York State Supreme Court Justice Patricia A. Harrington ordered the release from prison of Christopher Ellis, a man who served over 30 years for a crime he did not commit.

Mr. Ellis was accused of committing a murder on Long Island in 1990. Despite no physical evidence against him, Mr. Ellis, who is Black, was investigated by white detectives, convicted by an all-white jury, and sentenced to prison in 1992. Last month his conviction was vacated because the police had concealed multiple murder suspects from the defense and, apparently, the prosecution.

“The police showed absolutely no regard for Chris,” said ECBAWM partner Ilann Maazel, noting that during Mr. Ellis’ 18-hour interrogation he was denied food and drink and repeatedly roused from sleep. “He was worthless to them. And he is one of many young Black men who have had that experience.”

The Nassau Country District Attorney’s Office will decide by September 20 whether to retry Mr. Ellis.

Mr. Ellis is represented by Mr. Maazel and ECBAWM associate Scout Katovich.

Press
“After Key Evidence Was Withheld, 2 Men Spent 3 Decades in Prison,” The New York Times
“Man jailed for murdering Hofstra coach has conviction overturned after decades behind bars,” New York Post
“Judge orders Hempstead man released after 30 years behind bars,” Newsday
“‘I just want to run to the car’: NY man leaves prison after wrongful conviction,” PIX 11
“Long Island man’s conviction in 1990 murder of Hofstra coach tossed,” FOX 5
“Nassau man’s murder conviction overturned after 3 decades behind bars,” News 12 Long Island [VIDEO]

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CNN, Sports Illustrated, and Other Major Media Cover Latest OSU Sexual Assault Lawsuit

Major media outlets have covered the latest lawsuit filed by ECBAWM against The Ohio State University for the role it played in facilitating and concealing the sexual abuse of student-athletes by its former employee Dr. Richard Strauss.

Press Coverage 
“Nearly 30 new alleged abuse victims sue The Ohio State University,” CNN
“More Men Were Abused by Former Ohio State Doctor, New Lawsuit Says,” Sports Illustrated
“More men were abused by former Ohio State doctor, new lawsuit says,” ESPN
“New Lawsuit: More Men Were Abused by Ohio State Doctor,” US News & World Report
“New lawsuit: More men were abused by Ohio State doctor,” Associated Press

Article

ECBAWM Files Third Lawsuit Against The Ohio State University for Its Role in Facilitating and Concealing Sexual Assaults

ECBAWM has filed a lawsuit against The Ohio State University (“OSU”) on behalf of 29 survivors of sexual assault by former team doctor Richard Strauss.

The plaintiffs in Moxley v. OSU include Timothy Moxley, who was abused by Strauss first multiple times as a high school student at a wrestling camp held on OSU’s campus and then again as a student athlete at OSU, and 28 other men who were sexually assaulted, abused, molested, and harassed by Strauss while he was employed by OSU.

A 2019 investigation commissioned by OSU and conducted by the law firm Perkins Coie uncovered at least 177 abuse survivors and concluded that OSU had repeatedly failed to investigate or address complaints about Strauss.

Several months later, a report commissioned by Ohio Governor Mike DeWine also concluded that OSU failed to protect or inform students – even after the school was notified in 1996 by the State Medical Board about Strauss’ conduct. Instead of working to identify other students who had been abused by Strauss, as OSU told the State Medical Board it would, the school instead destroyed the health care records of students who had been examined by Strauss.

The firm has previously filed two separate lawsuits against OSU for its facilitation and concealment of sexual assaults by Strauss: Snyder-Hill v. OSU in 2018 and Khalil v. OSU in 2019.

OSU previously admitted that Strauss committed 47 rapes and 1,429 sexual assaults of student-patients while employed by OSU.

The Moxley plaintiffs are represented by ECBAWM’s Ilann M. Maazel, Debra Greenberger, and Marissa Benavides, along with Scott Elliot Smith LPA and Public Justice.

If you have been affected by the sexual abuse at Ohio State, please call us at 212-763-5042, email ohiosurvivors@ecbawm.com, or use this form.

Press Coverage
“Twenty-nine new plaintiffs sue Ohio State over university’s knowledge of Strauss abuse,” The Columbus Dispatch

Article

USA TODAY Publishes Selective Service Reform Article by ECBAWM Partner Ilann Maazel

In his latest column for USA TODAY, “Men-only military draft is a vestige of anti-women bias. Supreme Court should strike it down,” ECBAWM partner and civil rights attorney Ilann Maazel explores the United States’ current Selective Service law and the reasons it needs to change.

“The Military Selective Service Act discriminates against men, by imposing obligations, burdens and penalties that only men face,” writes Maazel. “The law discriminates against women by treating them as less than full citizens, conveying that women are less willing and able to defend the country, and perpetuating paternalistic stereotypes that, as Justice William Brennan once put it, ‘put women, not on a pedestal, but in a cage.’”

Maazel also notes that the law undermines military preparedness by depriving the military of “half the talent and ability of the population.” “[W]e cannot achieve equality while federal law makes men soldiers and women partial citizens.”

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ECBAWM Files Police Brutality Lawsuit Against NYPD Officers and the City of New York

Emery Celli Brinckerhoff Abady Ward & Maazel LLP has filed a complaint in the Eastern District of New York against the City of New York and New York Police Department Officers for excessive force. The complaint alleges that plaintiff Ernesto Lopez, a respiratory therapist who was working temporarily in New York City helping COVID-19 patients amid the height of the pandemic, was violently assaulted by several NYPD officers while he was peacefully protesting racial injustice and police brutality in Brooklyn on June 3, 2020.

The complaint further alleges that during the protest, unprovoked and without warning, NYPD officers violently assaulted and indiscriminately arrested several protestors, including Mr. Lopez. Though Mr. Lopez did not pose any threat to the officers, they arrested him, struck his head with a baton, and tackled him to the ground.

Police then forcefully restrained Mr. Lopez’s hands, typing zip ties so tight that he lost feeling in his fingers. He spent the next six hours in NYPD detention, where his repeated requests for medical treatment for his head injuries were denied. Additionally, Mr. Lopez’s face mask fell off during the assault and while he was detained, police refused his request to replace his mask despite the risk of COVID-19.

“This is an egregious incident of excessive force and violence committed by the NYPD against a peaceful protestor. It is even more shocking that this assault was carried out against a medical worker who had traveled to New York to help the city and its residents during a time of dire need,” said ECBAWM partner Ilann M. Maazel. “We are confident that these officers will be held accountable for the indiscriminate and unjustified violence committed against Mr. Lopez.”

“This case has key implications for the broader issue of unwarranted violence and excessive force used by the police against civilians exercising their right to peacefully protest,” added ECBAWM attorney Scout Katovich. “We are committed to seeking justice for Mr. Lopez.”

“Though I traveled to New York with the intent to help the sickest New Yorkers at the height of the COVID-19 pandemic, my experience unfortunately resulted in a shocking incident of violence at the hands of those sworn to protect the city and its residents,” said Mr. Lopez. “I’m optimistic that the resolution of this suit will bring justice and peace for myself, as well as for others who have been similarly brutalized by the police.”

Mr. Lopez is represented by ECBAWM attorneys Ilann M. Maazel and Scout Katovich.

Article

ECBAWM Partner Ilann Maazel Featured on “The Trial Brief” Podcast Episode About False Confessions and Faulty Witness Identification

ECBAWM partner and civil rights attorney Ilann Maazel was featured on the latest episode of The Trial Brief, a podcast hosted by New York City trial attorney David M. Oddo.

In “False Confessions and Faulty Witness Identification,” Maazel walks listeners through the evolution of wrongful conviction case law, including the role of DNA in uncovering truth and the creation of the Innocence Project, through the New York State Bar Association’s Report of Taskforce on Wrongful Convictions, which concluded that the top two causes of wrongful convictions are false confessions and mistaken stranger witness identification.

Maazel also explains the factors that can lead to a false confession, including whether the person being interrogated is young, potentially has a developmental disability, or is impressionable, as well as the length of the interrogation. “The longer the interrogation is, the more likely you’re going to get a false confession, because the message the interrogators are sending is, ‘until you admit to something, we’re not letting you go,’” says Maazel. “Just about anyone could confess to something they didn’t commit. You just want to tell them what they want to hear so you can get out.”

This immediate need to be free of the interrogation can override any other thought process. “Many people believe, incorrectly and tragically, that even if they falsely confess to something to just end the interrogation, the truth will come out later, because of course they know they’re innocent,” says Maazel. “But the truth doesn’t always come out later, or at least the prosecutors and juries don’t always understand what the truth is later.”

Maazel notes that while confessions are videotaped, interrogations are often not. “If you want to understand the iceberg, you don’t just look at what’s above the water. The critical work occurred before the camera was turned on.” Cameras should be required to be turned on from the very beginning of the interrogation, explains Maazel. “Let’s have the will to get to the truth, and not just the will to have the ‘gotcha’ evidence at the end that leads to a potential conviction.”

The second main contributing factor to false confessions is mistaken identification of strangers. Maazel cites The National Registry of Exonerations, a database created by the University of Michigan Law School that documents every known exoneration since 1989. “As of this recording, there have been 782 exonerations involving mistaken witness identification, accounting for 9,455 lost years in prison,” says Maazel. “That is a staggering injustice caused by misidentification.”

Maazel outlines a multi-part approach to ending wrongful convictions, including a systemic review of every single case that has relied on stranger witness identification or a confession or both, rigorous application of the latest social science research about identifications and confessions, and a conviction integrity unit in every District Attorney’s office that is staffed by people other than career prosecutors. “We need to correct all those injustices,” says Mazel, “and we don’t have a moment to spare, because people are in jail who need help.”

The Trial Brief is available on Apple Podcasts, Spotify, PodBean, and Audible.

Article

NYLJ Publishes Wrongful Conviction Article by ECBAWM Partner Ilann Maazel

In “False Confessions, Mistaken Identification and Wrongful Convictions,” his most recent column for the New York Law Journal, ECBAWM partner Ilann Maazel explains the role false confessions and mistaken witness identification play in leading to wrongful convictions. “Many criminal convictions today are suspect,” writes Maazel, who has represented criminal defendants seeking exoneration and exonerees seeking justice through civil lawsuits. “For these defendants, only an honest assessment of the facts, the science, and the research will lead to justice.”

Article

ECBAWM Partner Ilann Maazel Featured on “Finding Humanity” Podcast Episode About Cyberbullying

ECBAWM partner and civil rights attorney Ilann Maazel was featured on the latest episode of Finding Humanity, a podcast produced by the Humanity Lab Foundation and Hueman Group Media that provides in-depth coverage of complex social and political issues.

In “How a Bullying Survivor Found His Voice: Brandon Farbstein,” Ilann explains how a court would evaluate claims that a school was liable for the bullying or harassment of a student. “Is it severe and pervasive? Did the school have notice? And was the school ‘deliberately indifferent’ in its response, meaning was their response so weak that it allowed the harassment or bullying to continue? And when those things are all true, the school is itself liable for the bullying.”

Though most schools have adopted measures to curtail “in person” bullying, cyberbullying presents additional challenges. “There are two aspects of online bullying that make it very difficult to tackle,” says Ilann. “The first is that it often is anonymous, and it can be very difficult for a school to root out the culprit or the culprits and take action. The second issue is that by its nature, it is pervasive. An anonymous post can be shared with hundreds or thousands of people and that can create a horrible effect that’s much worse than just one or two kids in school. Now, you go to school and (a) have no idea who’s been bullying you, and (b) for all you know, every single person in that hallway or classroom has been sharing that post, and that just makes it devastating.”

Despite these challenges, Ilann says he still feels there is reason for some optimism. “I see hope because judges have kids. Jurors have kids. Our legal system understands that something needs to be done and our legal system is slowly addressing the challenge.”

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