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In NWM Capital v. Mark Scharfman, et al., Court grants ECBA’s Clients’ Motion for Summary Judgment on the Most Significant Claims in the Complaint

ECBA won an important victory on January 27, 2016 in a partnership dispute that is pending in New York Supreme Court, NWM Capital v. Mark Scharfman, et al. ECBA represents the defendants in the case, the general partners in four real estate partnerships and the managing agent of apartment buildings in Washington Heights, among others. Plaintiff is a limited partner in the partnerships.  The Court granted ECBA’s clients’ motion for summary judgment on the most significant claims in the complaint, finding that there was “no basis for these claims.” The Court also denied plaintiff’s motion for summary judgment in its entirety. The value of the dismissed claims, according to plaintiff, was tens of millions of dollars. ECBA attorneys Dan Kornstein and Sam Shapiro represent the defendants.

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Abady on MSNBC: Non-Indictment in Tamir Rice Shooting Is a “Whitewash’

ECBA partner Jonathan Abady, one of the lawyers for the family of Tamir Rice, appeared on MSNBC’s All In with Chris Hayes to discuss the non-indictment of the police officers who shot and killed Tamir, a 12-year-old boy, in Cleveland in 2014. The grand jury’s decision not to indict the officers — made at the recommendation of Cuyahoga County prosecutor Timothy McGinty — is “very distressing” and “disheartening,” Mr. Abady said.

“I think in conventional parlance, it’s usually referred to as a whitewash,” he added.

Watch the discussion below:

Rather than investigating and prosecuting this shooting, Mr. Abady explained, prosecutor McGinty “was canvassing and scouring the nation for someone, anyone, who would say that this shooting of this 12-year-old child was justified. And it took him almost a year.” McGinty hired multiple so-called experts with “clear pro-law-enforcement biases” to opine to the grand jury that the shooting was justified — an “almost unprecedented” move at this stage of the proceedings,” Mr. Abady said.

“It’s a tremendous disservice to the men and women in uniform who are actually doing their jobs competently, conscientiously, and professionally for this kind of thing to happen,” Mr. Abady added.

Mr. Abady also appeared on CNN to discuss the case.

To read more about ECBA’s work on the Rice case, click here. The Rice family is represented by ECBA attorneys Jonathan Abady, Earl Ward, and Zoe Salzman.

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Rice Family Disappointed that Officers Will Not Face Criminal Charges

Today, more than a year after Cleveland police shot and killed 12-year-old Tamir Rice, a grand jury voted not to indict the shooter.  Tamir’s family is saddened and disappointed by this outcome–but not surprised.

It has been clear for months now that Cuyahoga County Prosecutor Timothy McGinty was abusing and manipulating the grand jury process to orchestrate a vote against indictment.  Even though video shows the police shooting Tamir in less than one second, Prosecutor McGinty hired so-called expert witnesses to try to exonerate the officers and tell the grand jury their conduct was reasonable and justified.  It is unheard of, and highly improper, for a prosecutor to hire “experts” to try to exonerate the targets of a grand jury investigation.  These are the sort of “experts” we would expect the officer’s criminal defense attorney to hire—not the prosecutor.

Then, Prosecutor McGinty allowed the police officers to take the oath and read prepared statements to the grand jury without answering any questions on cross-examination.  Even though it is black letter law that taking the stand waives the Fifth Amendment right to be silent, the prosecutor did not seek a court order compelling the officers to answer questions or holding the officers in contempt if they continued to refuse.  This special treatment would never be given to non-police suspects.

The way Prosecutor McGinty has mishandled the grand jury process has compounded the grief of this family.

The Rice family is grateful for all the community support they have received and urges people who want to express their disappointment with how Prosecutor McGinty has handled this process to do so peacefully and democratically.  We renew our request that the Department of Justice step in to conduct a real investigation into this tragic shooting of a 12-year-old child.

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Court Approves Settlement in Cooper Union Case

Justice Nancy Bannon of the New York Supreme Court approved the settlement in ECBA’s case challenging the decision to charge tuition at The Cooper Union. ECBA represents the Committee to Save Cooper Union (CSCU), a group of alumni, faculty, and students which filed suit in May 2014, arguing that charging tuition violated the trust established by Peter Cooper and seeking to reinstitute free tuition.  After the CSCU filed suit, the New York Attorney General launched an investigation into the mismanagement of the school finances.   The settlement, which includes CSCU, the Attorney General, and the school, requires the college to commit to exploring the return to free tuition; establish a free education committee on the board of trustees; increase student, alumni, and faculty representation on the board; establish  the Associates of Cooper Union; and accept the oversight of an independent financial monitor.

In approving the settlement agreement, Justice Bannon wrote that the plan agreed upon “will most effectively accomplish the general purposes of Peter Cooper’s trust in the context of the present financial position of The Cooper Union.”  ECBA lead attorney Richard D. Emery said: “We are extremely optimistic that within a matter of years, the vision of Peter Cooper can be once again in place.”

Read coverage of the settlement approval in The New York Times here.

ECBA attorneys Richard D. Emery, O. Andrew F. Wilson, and Zoe Salzman represented the Committee to Save Cooper Union.

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Tamir Rice Family Petitions Department of Justice to Intervene in Police-Shooting Death

FOR IMMEDIATE RELEASE

Representatives of the mother, sister, and estate administrator of Tamir Rice, the 12-year-old boy whom Cleveland police officers shot and killed in November 2014, wrote to the Department of Justice today formally requesting that the federal government intervene to investigate both the boy’s death and local prosecutor Timothy McGinty’s handling of the case.

For months, the Rice family and their representatives have expressed growing concern about unfairness and bias in the grand-jury process.  Evidence of that bias and unfairness became so extreme that the family in October 2015 called for recusal of Mr. McGinty and appointment of an independent prosecutor.

Last week, on December 7, 2015, the prosecutor’s misconduct intensified even further.

Because it was apparent that the presentation to the grand jury was so unfair, the family was forced to retain its own experts in an attempt to have the grand jury consider accurate information on what actually happened the day Tamir Rice was killed.  Although local prosecutors promised they would present those experts to the grand jury in a fair manner, in a remarkable turn of events, they sabotaged testimony of the family’s experts through a series of highly unprofessional and inappropriate tactics before the grand jury.

The family’s two experts, Jeff Noble and Roger Clark, nationally recognized figures in the fields of law enforcement and excessive-force policy, left the grand jury last week stating that in their many decades of experience in state and federal courts across the country, they had never encountered such unfair, biased, unprofessional, and hostile treatment by a prosecutor’s office.

This duplicitous mistreatment of the family’s experts stands in stark contrast to the favorable treatment afforded the officers who killed Tamir Rice when they were allowed to read self-serving, prepared statements to the grand jury, without ever being cross-examined, even though the law is clear that by taking the stand to read their statements, the officers waived their Fifth Amendment privilege to be silent.

This latest act of prosecutorial misconduct provides further evidence that the grand-jury process has been irreparably harmed in this very important case.  It is clear local prosecutors are doing everything in their power to exonerate the officers, no matter what the evidence shows.  They are not engaged in the transparent, fair, and thorough investigation of the truth that they promised Tamir Rice’s family, the citizens of Cleveland, and the nation, ensuring that the officers will never face justice

 

Contact:
Emery Celli Brinckerhoff & Abady LLP—Jonathan S. Abady, Earl S.Ward, and Zoe Salzman—(212) 763-5000
The Chandra Law Firm LLC—Subodh Chandra—(216) 965-6463
FirmEquity—William Mills—(847) 207-9064

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ECBA’s Letter to Prosecutor McGinty Regarding Disclosure of Recommendation to Grand Jury

Read ECBA’s December 7 letter to Prosecutor McGinty here:

December 7, 2015

Re:       Disclosure of Recommendation to the Grand Jury

Dear Mr. McGinty:

As you know, this firm, The Chandra Law Firm LLC, and FirmEquity represent Samaria Rice; her daughter T.R.; and Tamir Rice’s estate.  This letter follows our recent meeting with you on November 24, 2015 at your offices.

During that meeting, you confirmed that it is normal practice for, and you intend to, make a recommendation to the grand jury about whether to indict Officers Loehmann and Garmback on criminal charges.  In our meeting, Tamir’s mother, Samaria Rice, respectfully asked just one thing of you—to tell her and the public in advance what your intended recommendation to the grand jury will be. You did not commit at that time to following in this case what you recognized was standard procedure.

There are countless examples of prosecutors and your office stating to the public the intention to seek charges from grand juries. Just one notable example is the case of serial rapist and kidnapper Ariel Castro, in which you were quoted publicly as saying: “I fully intend to seek charges for each and every act of sexual violence, rape, each day of kidnapping, every felonious assault, and each act of aggravated murder for terminating pregnancies that the offender perpetrated,” and “We are presenting additional evidence to the grand jury next week and the week after. We expect we are going to request further indictments.”  Of course, such statements, whether announced publicly or promised privately to crime victims, are your office’s (and every prosecutor’s) regular practice.

There is no basis to depart from this normal practice here, and it would be disturbing if you did.  There is no statute, case, or ethics rule that prevents you from announcing your intention to seek criminal charges (or not) against the officers responsible for killing this 12-year-old boy.  You have already taken the position in this case that Ohio Criminal Rule of Procedure 6(E), which protects the secrecy of grand-jury information, does not apply to intended future conduct.  That was ostensibly, in part, your justification for releasing what we believe to be highly prejudicial, unsupported, and unjustified “expert” reports and unsworn written officer “statements.”

If you truly intend to be “transparent,” you must disclose to the public and the crime victim’s family whether you intend to seek criminal charges (and if so, which charges), just as you did in the Ariel Castro case and others.  Your failure to do so would be inconsistent with your stated commitment to be fair and impartial.  Please confirm you will not create a special exception to the normal practice and will disclose your recommendation to the grand jury in advance of making it.

Sincerely,

Jonathan S. Abady, Earl S. Ward, Zoe Salzman

Article

ECBA Partner Jonathan S. Abady and Charles J. Ogletree, Jr. Publish Op Ed on Police Violence and the Tamir Rice Case

The Cleveland Plain Dealer (through Cleveland.com) published an Op Ed authored by Jonathan S. Abady and Professor Charles J. Ogletree Jr. titled, “Tamir Rice and the Deeper Issues of Police Violence.”

To read the full article, click here.

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Tamir Rice: Scientific Analysis Shows Shooting Was Unjustified and Officer Statements Are Inaccurate

FOR IMMEDIATE RELEASE

Rice Family Releases Additional Expert Reports in Response to Enhanced Video and Officer Statements

On December 4, 2015, the attorneys for Tamir Rice’s mother, sister, and estate administrator released three expert reports analyzing the enhanced video stills, which Prosecutor McGinty’s office released on November 28, 2015, and the statements of Officers Loehmann and Garmback, which the prosecutor released on December 1, 2015.  Two of these are supplemental reports by Roger Clark and Jeffrey Noble, whose original reports were provided to the prosecutor on November 27, 2015.  The third report is by Dr. Jesse L. Wobrock, who has a Ph.D. in biomedical engineering from UCLA and has testified as an expert in biomechanics and kinetics hundreds of times all over the country.

Read Roger Clark’s Supplemental Report here.
Read Jeffrey Noble’s Supplemental Report here.
Read Dr. Jesse L. Wobrock’s Report here.
Read the letter to Prosecutor McGinty enclosing the expert reports here.

Scientific Analysis Demonstrates that the Officers’ Statements Were Misleading or Untruthful

Dr. Wobrock’s report applies the science of biomechanics and kinetics to analyze the enhanced video stills just recently released by the prosecutor.

Based on this scientific analysis, Dr. Wobrock concludes:

  • Officer Loehmann shot Tamir Rice within less than 1.0 second of exiting the vehicle.
  • The toy gun was not visible to either of the officers prior to the shooting and the video shows that at no point in his encounter with the police did Tamir Rice reach into his waistband.
  • Tamir Rice’s hands were in his pockets when he was shot.
  • The movement of Tamir Rice’s elbow and shoulder in Frame 123 is Tamir responding to being shot.

Under Clear Supreme Court Law, the Officers must be Cross-Examined or Subject to Contempt

Earlier on December 4, 2015, the Rice family attorneys sent a letter to Prosecutor McGinty explaining that, under well-established law, by reading their self-serving statements to the grand jury this week, the officers waived their Fifth Amendment privilege and are now required to answer questions on cross-examination.  They need to be recalled before the grand jury and compelled to answer questions on cross-examination or held in contempt.

Read the letter to Prosecutor McGinty here.

Contact:
Emery Celli Brinckerhoff & Abady LLP—Jonathan Abady, Earl Ward, and Zoe Salzman(212) 763-5000
The Chandra Law Firm LLC—Subodh Chandra—(216) 965-6463
FirmEquity—William Mills—(847) 207-9064

Article

Tamir Rice Family Attorneys Say Officers Waived the Fifth Amendment and Should Be Compelled to Testify

Read ECBA’s letter to Prosecutor McGinty here:

December 4, 2015

Re:       Police Officers’ Waiver of Fifth Amendment Privilege against Self-Incrimination

Dear Mr. McGinty:

As you know, this firm, The Chandra Law Firm LLC, and FirmEquity represent Samaria Rice; her daughter T.R.; and Tamir Rice’s estate.  Counsel for officers Loehmann and Garmback and a police-union representative have publicly admitted that the officers who killed Tamir Rice took the oath and read the grand jury their prepared, previously unsworn statements “against legal advice,” and then refused to answer any questions based on the Fifth Amendment.  But the law is clear: by reading their self-serving statements, the officers waived their Fifth Amendment privilege and are now required to answer questions on cross-examination.

Under longstanding Supreme Court precedent, by testifying under oath about their conduct toward 12-year-old Tamir, the officers have now waived their Fifth Amendment right to be silent in the grand-jury proceeding on that subject: a witness can “not take the stand to testify in [his] own behalf and also claim the right to be free from cross-examination on matters raised by [his] own testimony on direct examination.”  Brown v. United States, 356 U.S. 148, 155-56 (1958).  As the Supreme Court has explained, every “witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all.”  Id.  But the witness “cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute.  It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.” Id.  See also Vill. of Barnesville v. Hunkler, No. 86-B-7, 1987 WL 5709, at *3 (Ohio Ct. App. Jan. 22, 1987) (various U.S. Supreme Court citations omitted) (“[The accused’s] option is either to stay off the stand entirely or to testify in his own behalf.  Thus, his privilege as well as its waiver has wider scope than of an ordinary witness. By volunteering to testify, he throws away his shield and opens himself to inquiry as to all relevant matters pertaining to the crime for which he is on trial.”); State v. Dunton, No. 48944, 1985 WL 8007, at *9 (Ohio Ct. App. Apr. 25, 1985) (“Having taken the stand, [the witness] opened himself up to cross-examination”).  Under this clearly established law, there is no question that Officers Loehmann and Garmback waived their Fifth Amendment privilege by appearing before the grand jury, taking the oath, and reading their own self-serving statements.

No one—now except police officers in Cuyahoga County apparently—is ever permitted to have it both ways: make a self-serving statement under oath but be free of any cross-examination to expose the truth.  The officers’ statements were replete with opportunities for aggressive cross-examination.  The irregular tactics these officers used, the contradictions between—and physical impossibilities claimed in—their statements, and the facts left unsaid yet apparent from the video evidence are ripe for cross-examination.

Your office must bring the officers back in to answer those questions and, if they refuse, ask the Court to compel their testimony and hold them in contempt if they continue to refuse to answer questions.  You also need to inform the grand jurors that they have the independent right to themselves recall the officers, question them, and ask the Court to compel their testimony if they refuse to answer.  To do anything else undermines the search for the truth in this case and does a great disservice to the Rice family, the Cleveland community, and the nation.

Sincerely,

Jonathan S. Abady, Earl S. Ward, Zoe Salzman