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Prisoner Education Guide

Articles by Derek Gilna

Discovery Sanction against New York City Sets Stage for Probable Damages Award in False Imprisonment Suit

By Derek Gilna

In a decision published on December 8, 2009, from an appeal of parts of an order of the Supreme Court, Queens County dated November 28, 2007, which denied their motion to strike defendants' answer pursuant to CPLR. 3126(3), the lower court's order was reversed, the answer stricken, and the matter remitted to the Supreme Court, Queens County, for a hearing of the issue of damages.

The case arose from the arrest of plaintiff Byam for the homicide of Martin Sweeting on September 26, 1993. Byam was acquitted of that charge. His wife and he sued to recover damages for false arrest and malicious prosecution. The plaintiffs have been unsuccessful in obtaining discovery from the defendants, and the court cited their "willful and contumacious conduct... from their repeated failures, over an extended period of time, to comply with discovery orders, together with the inadequate, inconsistent, and unsupported excuses for those failure to disclose."

The discovery sanction, which resulted in the striking of defendants' answer, effectively ends the litigation in the plaintiff's favor, save the hearing on damages. Byam v. City of New York, 68 A.D.3d 798, 890 N.Y.S.2d 612 (2009).

Former Ohio Sheriff Sentenced to One Year of House Arrest for Theft and Ethics Violations

By Derek Gilna

Gerald T. McFaul was Sheriff of Cuyahoga County, Ohio for decades, but the 76-year old Democrat was contrite as he apologized to the people of Cuyahoga County for theft and ethics violations. He could have been sentenced for up to ten years in jail, but Judge Inderlied chose to sentence him to one year of house arrest, McFaul’s poor health as a mitigating factor. He will be forced to wear an ankle bracelet that will monitor his movements to make sure that he remains at home.

"I am very sorry, and that what I did to my wife and family..." McFaul said at sentencing, where more than 50 of his relatives and friends were in the courtroom.

The Cleveland Plain Dealer conducted an investigation into allegations of criminal wrongdoing that eventually led to his indictment and conviction. McFaul was in office for more than forty years, and had been accused of personally profiting from the operation of the Sheriff's Office. According to the Plain Dealer, "McFaul cheated the county of thousands of dollars by forcing workers to sell tickets to his [fundraising] clambakes while on duty. He admitted he allowed employees to sell the tickets ...

Fourth Circuit Reverses Injunction Relating to Publication of Social Security Number on Virginia Land-Transfer Records

By Derek Gilna

The appeal arose from a First Amendment challenge to Virginia's Personal Information Privacy Act, Va. Code Sec. 59.1-442 to 444, part of which prohibits “[i]ntentionally communicat[ing] another individual's social security number to the general public.” The district court ruled that this was unconstitutional, as applied to an advocacy website that criticized Virginia's release of private information and showed publicly available Virginia land records containing unredacted Social Security Numbers. The court entered a permanent injunction barring Virginia from punishing the republication of "publicly obtainable documents containing unredacted Social Security Numbers of Virginia legislators, Virginia Executive Officers or Clerks of Court as part at an effort to reform Virginia law in the area of online publication.”

In a long discussion relating the history of First Amendment rights, and applying those to the areas of the expectation at privacy in one's social security number, the court recognized the fact that the injunction was overbroad, concluding that "the district court abused its discretion by not tailor[ing] the scope of the remedy to fit the nature and extent of the constitutional violation... [and] We thus reverse the district court's June 2, 2009 decision ...

Human Rights Watch Report Faults ICE for Improper Treatment of Mentally Disabled Aliens

By Derek Gilna

A 2010 study by Human Rights Watch highlights abuses suffered by mentally disabled aliens, both legal and illegal. According to Human Rights Watch, "Every year, several hundred thousand people in the United States are arrested for possible deportation by Immigration and Customs Enforcement (ICE). The vast majority are held in immigration detention, both during and even after their deportation hearings... At least 15 percent of these immigration detainees—an estimated 57,000 people in 2008—are thought to have a mental disability, some so severe... they do not know their own names or do not understand that deportation means removal from the country."

The report states that "The US immigration court system is complicated and adversarial at the best of times... [but] may be particularly confusing for people with mental disabilities, who may find it hard to follow proceedings, or provide credible evidence to lawyers and judges, especially without legal representation and adequate support."

The report drew its information upon which it based its conclusions from 104 interviews "with non-citizens with mental disabilities, their family members, social workers, psychiatrists, immigration attorneys, judges and rights advocates..." The study concluded that the "human rights of affected individuals" are violated ...

Michigan Supreme Court Reverses Its Own Decision Allocating Greater Funding for State’s Public Defender Offices

By Derek Gilna

In an unusual decision, criticized by the American Civil Liberties Union, the Michigan Supreme Court on July 17 reversed itself and threw out a lawsuit that would have required the State of Michigan to provide more funds for poor people accused of crimes to hire attorneys. "We are shocked and disturbed by the Supreme Court's about-face, said Michael J. Steinberg of the Michigan chapter of the ACLU." Today's order prevents us from proving what most observers already know-Michigan's justice system is broken for poor people accused of crimes."

The court had already upheld court decisions favoring the lawsuit of eight men and women convicted of crimes in Berrien, Genesee, and Muskegon counties against the state of Michigan, and Governor Jennifer Granhol, which sought consistent state funding for the criminal justice defense system operated and funded by the state's 83 counties.

The reversal of the court's previous decision came about as a result of motion for reconsideration of this Court's April 30, 2010 order, and reversed that June 11, 2009 judgment of the Court of Appeals, and granted the defendants motion for summary disposition, adopting the dissenting opinion of the Court of ...

Seattle Federal Halfway House Case Manager’s Reentry Plan for Prisoner Allegedly Included Sex, Heroin

A former case manager at Pioneer Fellowship House, a halfway house in Seattle, Washington, has been accused of having a sexual relationship with one of the released prisoners she supervised and providing him with money to buy heroin.

According to records filed in federal court by Special Agent Wayne Hawney with the Office of the Inspector General (OIG) of the U.S. Department of Justice, the former halfway house employee, who quit her position in March 2011, befriended the ex-prisoner after he was released from federal prison upon completing a sentence for robbing numerous banks.

PLN contacted both the OIG’s office and the U.S. Attorney’s office, but both declined to provide the name of the case manager or the former prisoner involved in the investigation. PLN later determined the ex-prisoner was Christopher S. Webb. We have not yet determined the identity of the case manager.

The matter came to light after Webb, described as a habitual heroin user in court records, absconded from the half-way house, saying he would fail a drug test administered by another worker at the facility. He then offered to provide evidence against the case manager, whom he claimed had given him money ...

Federal Bureau of Prisons Says DNA Backlog No Longer Exists

In July 2011, the federal Bureau of Prisons (BOP) announced that it had eliminated a backlog of over 90,000 DNA samples from federal prisoners. This milestone occurred more than a decade after Congress passed the DNA Analysis Backlog Elimination Act in 2000.

Florida Congressman Vern Buchanan, who had drawn attention to the backlog, was pleased with the long-delayed results. “DNA is an extremely important and effective tool for law enforcement,” he stated. “I will continue to work with the Bureau of Prisons to ensure that DNA evidence is available in a timely manner to help prevent violent crimes in the future.”

DNA samples are now taken from BOP prisoners when they enter the prison system rather than when they leave, and the samples are processed within 30 days after receipt by the FBI laboratory.

According to a September 2011 report from the Office of the Inspector General (OIG) of the U.S. Department of Justice, “Our review determined that as of September 2010, the FBI Laboratory’s Federal DNA Database Unit had effectively eliminated its backlog of convicted offender, arrestee, and detainee DNA samples. We determined that the FBI reduced this backlog from over 312,000 samples in December ...

Connecticut District Court Finds ICE Agents Not Shielded from Bivens Liability; Suit Settles for $350,000

In a lawsuit brought by the Yale Law Clinic on behalf of Hispanics swept up in an Immigration and Customs Enforcement (ICE) raid in New Haven in June 2007, the U.S. District Court for the District of Connecticut held that ICE officials are not immune from liability for federal ...

Eighth Circuit Revisits Muslim Prisoner’s Settlement with Nebraska DOC; $74,000 in Attorney Fees Awarded

In a detailed ruling, the U.S. Court of Appeals for the Eighth Circuit rejected an attempt by a Muslim prisoner to obtain additional attorney fees for alleged violations of an agreed injunctive order, and remanded for further proceedings. Following remand, the district court awarded over $74,000 in fees ...

BOP Staff at FMC Lexington Recover Monetary Damages and Attorney Fees for Privacy Act Violations

In a lengthy decision, the Court of Appeals for the Sixth Circuit held that approximately 100 employees of the Bureau of Prisons (BOP) could recover damages under the Federal Tort Claims Act for violations of the Privacy Act at the Federal Medical Center (FMC) in Lexington, Kentucky. The defendants in ...


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