United States: Pro Bono Litigation

Last Updated: February 4 2013
Article by Alan J. Stone

Milbank's amicus brief plays key role in landmark decision on eyewitness identification procedures

Milbank prepared an amicus curiae brief to the Oregon Supreme Court on behalf of a group of academics who have developed a body of research on the lack of reliability and accuracy of eyewitness identifications. The court's ground-breaking decision reversed the murder conviction of Samuel Lawson. The court relied largely on the scientific research and literature we submitted, unanimously finding that science had "progressed sufficiently to warrant taking judicial notice of the data contained in those various sources as legislative facts." The Oregon decision, which expands on a recent New Jersey Supreme Court decision, goes far in addressing faulty eyewitness identifications, which is the single greatest cause of wrongful convictions.

Milbank prevents deportation of quadriplegic community activist

Working with the Legal Aid Society, Milbank prevented the deportation of a quadriplegic man who has lived in the United States for almost forty years. The only way to prevent deportation was through prosecutorial discretion, which is rarely exercised.

In the mid-1980s, our client, who had previously pled guilty to three misdemeanor drug offenses, was the victim of a shooting that left him paralyzed from the neck down. Despite his paralysis, he obtained his GED and bachelor's degree and became a computer analyst. He also has become a community activist and role model for people with disabilities.

Our client obtained a green card after coming to America from Guyana at the age of six. Years later, when he applied for a new green card, the government sought to deport him based on his guilty pleas. We opposed, citing Guyana's lack of employment and resources for disabled people. After reviewing all of the evidence, the government moved to terminate the case based on "voluminous documentation encompassing the Respondent's medical and employment history, as well as his family ties in the United States." The client received his green card.

Milbank FOIA challenge allows Brennan Center to receive information it had been seeking for years

On behalf of the Brennan Center, Milbank challenged the withholding of a memorandum by the Office of Legal Counsel in the Department of Justice. The memorandum concerned the constitutionality of government statutes requiring non-governmental organizations receiving federal funding to have a policy opposing prostitution. The OLC initially opined that the pledge requirement was unconstitutional as applied to American NGOs, and the government did not enforce the requirement against American NGOs for a substantial period. The Brennan Center, which was challenging the pledge requirement on substantive grounds, sought to obtain the memorandum under FOIA, without success. We convinced the United States District Court for the Southern District of New York that the memorandum could not be withheld on the ground that it was the basis for a government policy. The Second Circuit panel unanimously affirmed the trial court decision with respect to the key document at issue, reaffirming an important Second Circuit precedent in this area of the law. The government is not appealing the decision and, because of our assistance, the Brennan Center received a critical document that it has been trying to obtain for years.

Milbank advocates for new procedural protections affecting more than a thousand immigration cases pending before the Second Circuit

In a rare en banc decision from the Second Circuit, Milbank's advocacy resulted in the creation of important protections for immigrants in procedural limbo. We represented a family from Burma that appealed the denial of its asylum claim. During the appeal, the parties agreed to hold the case in abeyance, jointly stipulating that the case was determined to be a "low priority removal case" and that the family would "not be removed in the foreseeable future."

This stipulation was consistent with the recent DHS memorandum altering enforcement rules, and providing that longstanding U.S. residents without a criminal record were not a priority for removal. This memorandum, however, provided no direction on how cases deemed to be "low priority" but already on appeal should be handled. Over a thousand cases then pending before the Second Circuit were in the same situation. The Second Circuit noted the futility of expending judicial resources on cases where the government would not seek prompt removal, even if it were successful.

We agreed with the government that the case should be remanded for administrative closure, but disagreed about the proper procedural mechanism. We wanted to ensure that our client, and all other petitioners, would have the right to reinstate their cases. In October 2012, the Second Circuit responded to our concerns and issued an en banc opinion establishing a procedure applicable to all immigration cases before the court that preserved petitioners' right to appeal.

Milbank adds to new line of cases on state liability for sexual assault of inmates

Milbank represents a former inmate of Bayview Correctional Facility, Ms. Morris, who was sexually assaulted by a prison guard while asleep in her cell. The same guard also harassed Ms. Morris before and after the assault, making sexually suggestive comments and issuing a false disciplinary ticket against her. Ms. Morris sued the State of New York in the Court of Claims, alleging that it was negligent in its supervision and retention of the guard, who already had several complaints of sexual misconduct against him at the time of the assault. In October 2011, we moved for summary judgment on the issue of the State's liability. The Court of Claims granted the motion in March 2012, finding that the State should have taken extra precautions to protect the inmates from the officer in light of the numerous prior allegations against him. The decision represents a sea change in the law and is the third in a series of recent summary judgment decisions finding the State liable for sexual assault committed by prison guards. A trial on damages is scheduled for early 2013.

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