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Statement regarding Rice family grand-jury testimony in the criminal investigation of the officers responsible for the death of Tamir Rice

Today, Samaria Rice and two of her children had the opportunity to tell a grand jury about the horror they experienced on November 22, 2014, when Cleveland police officers rushed upon and shot their beloved son and brother Tamir Rice.

Ms. Rice told the grand jury about how she learned about the police shooting of her 12-year-old son and what a gentle, loving, and kind soul her child was to his family and friends.

She had the opportunity to ask the grand jury to consider whether it could possibly be “reasonable” or “justifiable” for officers to speed across the grass when driveways were nearby, rush up to Tamir, and shoot him immediately.

She believes that the answer is plainly no, and hopes and prays that the grand jury agrees that there is probable cause to indict the officers and hold them accountable for her son’s death.

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Independent Experts Conclude that the Police Shooting of 12-Year-Old Tamir Rice Was Unreasonable

On November 27, 2015, ECBA sent a letter to Cuyahoga County Prosecutor Timothy McGinty, enclosing two independent expert reports which both conclude that the shooting of 12-year-old Tamir Rice by Cleveland police on November 22, 2014 was unreasonable, unjustified, and a departure from accepted police practices.

The first report is by Jeffrey Noble, who was a police officer for 28 years, including serving as Deputy Chief of Police of Irvine and Westminster, in California.  Mr. Noble has extensive experience has an expert on police use of force and has been retained as an expert by many police departments across the country, including Chicago, San Francisco, and Austin.  The second report is by Roger Clark, who is a 27-year veteran of the Los Angeles County Sheriff’s Department.  Mr. Clark has been recognized as an expert in the police use of force in courts across the country and his work has been heavily relied on by courts, including the Fifth and Ninth Circuits Courts of Appeals.  Both Mr. Clark and Mr. Noble strenuously disagree with the conclusions of the so-called experts put forth by Prosecutor McGinty, who concluded the shooting of Tamir Rice was reasonable and justified.  Based on the available evidence, both Mr. Clark and Mr. Noble conclude that this shooting was unreasonable, criticizing both the tactics that led to the officers pulling up and immediately shooting Tamir within 1.7 seconds, and the fact that Tamir did not pose a threat at the time the officers arrived.

ECBA called on Prosecutor McGinty to present Mr. Noble and Mr. Clark to the grand jury that is currently convened to examine whether criminal charges should be brought against the police officers who killed Tamir.

Read the Jeffrey Noble report here and the Roger Clark report here and the ECBA letter to Prosecutor McGinty here.

ECBA attorneys Jonathan S. Abady, Earl S. Ward, and Zoe Salzman represent the mother, sister, and estate administrator of Tamir Rice.

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Ilann M. Maazel: A Constitutional Checklist — How Do We Fight Terrorists Without Sacrificing Our Civil Rights?

By Ilann M. Maazel
This blog post was originally published on www.law.com.

In the wake of the Paris attacks, once again we debate how to preserve liberty in a time of terror. The CIA Director demands more surveillance. Some Republican presidential candidates propose to shut down mosques or impose religious litmus tests on refugees. With the proliferation of weapons, social media, and sociopaths, the danger over the next decades will only increase. How do we fight terrorists without sacrificing civil rights? Here is a constitutional checklist of what we can and cannot do:

What We Cannot Do

Religious Profiling: Even if every terrorist in the world were Muslim (many, of course, are not—remember Timothy McVeigh, the Unabomber, Anders Breivik), over 99% of Muslims are not terrorists. That’s over 1.5 billion people no more responsible for the horrors of Paris, Madrid, or 9/11 than Mother Teresa. It is easy to support profiling when you are not in the group being profiled. Closing down mosques, or targeting people based on religious belief, would not only violate the First Amendment right to free exercise of religion, but also alienate millions of law-abiding Americans.

Mass Surveillance: After 9/11, Presidents Bush and Obama authorized the NSA to spy on millions of Americans. Edward Snowden revealed the phone metadata program, in which the NSA tracks billions of phone calls made by hundreds of millions of Americans. The NSA also intercepts the content of millions of domestic communications. (Nine years ago, I filed a still-pending class action lawsuit to stop that program.) There is little evidence that turning the awesome spying apparatus of the NSA on the American people prevents terrorism. But even if spying on 300 million Americans unearthed some terrorist somewhere, what is the cost? The Fourth Amendment prohibits the government from rummaging through our files, records, emails, texts, and calls without good cause and a judicial warrant. American independence—John Adams famously declared—was itself born of arbitrary general searches by the British. To those who would sacrifice privacy rights because they have “nothing to hide,” should we sacrifice the right to free speech because some have “nothing to say”? Privacy matters. Let’s not hand Big Brother the keys to our innermost thoughts, most intimate conversations, and every last click on our computer.

Denying Access to Justice: Citing national security, courts have repeatedly dismissed legal challenges to alleged kidnapping, detention, and even torture by the United States government. Just last month, a Washington, D.C. appeals court ruled that Amir Meshal, an American wrongfully kidnapped and imprisoned abroad by the FBI, had no legal right to sue the federal government. These cases are troubling. When the United States government brutalizes innocent people, the government has to be accountable. Without accountability, the rule of law means nothing.

Torture violates the Constitution and international law. It is a major recruiting tool for our enemies. And it doesn’t work. As John McCain put it, torture victims “will say whatever they think their torturers want them to say.” Banning torture is legally required and good policy.

What We Can Do

Declare War: Every nation has the right to defend itself. But under the Constitution, only Congress has the “power . . . to declare war.”  If we are fighting a war against ISIS, Congress must vote and say so.

Kill American Terrorists on the Battlefield: The government has the right to target American terrorist leaders, in enemy territory, actively engaged in a war against the United States. Accused terrorists captured on American soil—Boston Marathon bomber Dzhokhar Tsarnaev for example—are constitutionally entitled to due process: lawyers, juries, the presumption of innocence. But nothing in the Constitution requires American soldiers to risk their lives to capture an alleged terrorist in Yemen or Afghanistan.

Targeted Spying of potential terrorists, with probable cause and a warrant, is legal and effective. The Foreign Intelligence Surveillance Court exists to issue these warrants.

Control the Border: We are a proud nation of immigrants, but nothing in the Constitution prevents us from securing our borders and screening visitors—refugees, students, tourists, anyone—with a fine-tooth comb.

Work With Communities to Root Out Terrorists: Law enforcement can and should work with religious leaders to root out radicals and terrorists. But if a leader spews hate and advocates violence, that provides a legal basis to go undercover, infiltrate, and look for potential terrorists.

Presidents often say their first responsibility is to protect the nation. But the President-elect takes an oath to “preserve, protect, and defend the Constitution of the United States.” The Constitution, not the country. The Constitution created the presidency, the Congress, the courts, and the United States itself. In a nation built on principles—not ethnicity, race, creed, or even culture—the Constitution remains our North Star.

It is possible to preserve constitutional rights and fight terror at the same time. We have to. If we sacrifice American ideals, who will we become? That is a question I hope we never have to answer.

This article was first published on the Law.com Network on November 24, 2015

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Consumers reach $59 million settlement in debt collection class action

A federal court has preliminarily approved a settlement on behalf of New Yorkers who alleged fraudulent debt collection practices.  The $59 million settlement in the case, captioned Sykes v. Mel S. Harris and Associates LLC, No. 09 Civ. 8486 (S.D.N.Y), is believed to be the largest ever of its kind.  The settlement is also expected to lead to the unprecedented vacating of approximately 195,000 court judgments.     If your debt was owned by LR Credit, you may be a class member; for  more information, please visit www.sykesclassaction.com.

Plaintiffs’ lawsuit alleged that that Defendants used fraudulent practices to file debt collection lawsuits, obtain default judgments, and then collect on those judgments; Defendants deny liability.  The Defendants lost their appeal to the U.S. Second Circuit Court of Appeals in early 2015, in which they sought to invalidate the trial court’s certification of the class.

The class is represented by ECBA attorneys, Matthew Brinckerhoff, Jonathan Abady, Debbie Greenberger, and Elizabeth Saylor, along with co-counsel MFY Legal Services and the New Economy Project.   Read more about the settlement in coverage by the New York Times, the NY Law Journal, the NY Post, the Democrat & Chronicle, the Daily News and NY 1.

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Tamir Rice’s Family Criticizes Prosecutor’s Release of Another Improper “Expert” Report

On November 16, 2015, ECBA sent a letter to Cuyahoga County Prosecutor Timothy McGinty, criticizing his decision to release a third supposed “expert” report purporting to exonerate the Cleveland police officers who shot and killed 12-year-old Tamir Rice on November 22, 2014.

Like the other pro-police, so-called “expert” reports released by Prosecutor McGinty so far, this latest report relies on improper speculation and rubber stamps the officers’ blatantly improper tactics.  It also goes so far as to blame 12-year-old Tamir Rice for his own death and to equate the “tragedy” of “the possibility of loss of career” for the police officers with the “tragic loss of life” of Tamir Rice.

The letter ends by renewing the Rice family’s call for McGinty to step aside and let an independent special prosecutor take over this case because his handling of this case no longer has any credibility.

This letter follows letters sent by ECBA on October 16 and November 9 criticizing Prosecutor McGinty’s handling of the investigation into Tamir Rice’s death.

Read ECBA’s November 16 letter to Prosecutor McGinty here.

Read ECBA’s November 9  letter to Prosecutor McGinty here.

Read ECBA’s October 16  letter to Prosecutor McGinty here.

ECBA attorneys Jonathan S. Abady, Earl S. Ward, and Zoe Salzman represent the mother, sister, and estate administrator of Tamir Rice.

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Hal Lieberman and Harvey Prager Publish 2016 Edition of New York Attorney Discipline: Practice and Procedure

Hal Lieberman and Harvey Prager, with their co-author, Richard Supple, have updated their book, New York Attorney Discipline Practice and Procedure for 2016. The new publication is now on sale on ALM’s website from the publishers of the New York Law Journal.

The book provides a practical, in depth, and orderly framework:

  • For lawyers who receive complaints, wish to get admitted to practice, or are subject to discipline
  • For their lawyers
  • For staffs and committee members of disciplinary agencies, and
  • For consumers of legal services.
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Tamir Rice’s Family Criticizes Prosecutor’s Inappropriate Comments

On November 9, 2015, ECBA sent a letter to Cuyahoga County Prosecutor Timothy McGinty, criticizing the inappropriate comments he made last week about Samaria Rice, the mother of 12-year-old Tamir Rice who was shot and killed by Cleveland police last year.

The letter renews the Rice family’s call that a special prosecutor be appointed, because Prosecutor McGinty’s “public comments impugning the integrity of Ms. Rice and her representatives have now resulted in a situation where your office has not only made a decision to present biased and discredited ‘expert’ testimony to the grand jury, but you are now taking the remarkable tact of attacking the motives of a grieving crime victim and her attorneys who are attempting to secure justice for her and her family.  Your office’s handling of this matter has now raised an unmistakable appearance of bias and impropriety.”

This letter follows another letter sent by ECBA on October 16, criticizing Prosecutor McGinty’s release of two biased, pro-police reports that purported to justify the shooting.

Read ECBA’s November 9  letter to Prosecutor McGinty here.

Read ECBA’s October 16  letter to Prosecutor McGinty here.

ECBA attorneys Jonathan S. Abady, Earl S. Ward, and Zoe Salzman represent the mother, sister, and estate administrator of Tamir Rice.

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Andrew Wilson publishes article on Fisher v. University of Texas at Austin

Andrew Wilson published an article concerning the Supreme Court’s forthcoming  consideration of Fisher v. University of Texas at Austin with the American Bar Association’s civil rights section. The article provides context for the Supreme Court’s next decision to address affirmative action in college admissions. To read the full article, click here.

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