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New York Law Journal featured Haub Law Professors Bridget J. Crawford and Emily Gold Waldman's piece "Tampons and Pads Should Be Allowed at the Bar Exam"

07/23/2020

New York Law Journal featured Haub Law Professors Bridget J. Crawford and Emily Gold Waldman's piece "Tampons and Pads Should Be Allowed at the Bar Exam"

Bar exam takers around the country are facing unprecedented uncertainty. In less than two weeks, thousands of recent law graduates will sit down in hotel ballrooms, convention centers and large classrooms to take the test that they have been training for three (or more years) to take. With little notice, several states have cancelled the bar exam because of COVID-19 health concerns. Some states like New Jersey and Florida announced an online bar exam in lieu of traditional testing that otherwise would require hundreds or thousands of people to crowd into enclosed spaces for several hours a day over a two-day period. Oregon and Utah canceled their exams and granted a “diploma privilege” to allow law graduates to practice without taking the bar exam. New York axed its test just seven weeks before the big day, with no plans for an alternate test administration. Other states, including those where COVID-19 infection rates continue to rise, are going full-speed ahead with plans to administer in-person tests later this month.

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New York Law Journal featured Haub Law Professor Debra Cohen in "2nd Circuit Rejects Qualified Immunity in Lawsuit Over Police Shooting of Mentally Ill Man"

06/02/2020

New York Law Journal featured Haub Law Professor Debra Cohen in "2nd Circuit Rejects Qualified Immunity in Lawsuit Over Police Shooting of Mentally Ill Man"

Contacted by phone Monday, Cohen, a professor at Pace University’s Elisabeth Haub School of Law and co-chair of the Civil Rights Practice Group of Newman Ferrara, said the decision meant that “we are hopefully beginning to see some correction in the overly broad application of qualified immunity to the actions of police officers.”

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"Law.com" featured The Elisabeth Haub School of Law in "Brooklyn DA Gonzalez Receives Robert S. Tucker Prize"

12/02/2019

"Law.com" featured The Elisabeth Haub School of Law in "Brooklyn DA Gonzalez Receives Robert S. Tucker Prize"

The Elisabeth Haub School of Law at Pace University bestowed the 2019 Robert S. Tucker Prize for Prosecutorial Excellence on Brooklyn District Attorney Eric Gonzalez in recognition of his contributions to the field of criminal prosecution and excellence in prosecutorial practice. The ceremony was held on Nov. 25 at Pace University’s New York City campus.

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"New York Law Journal" featured law Professor Michael Mushlin's piece in "The Role of SCOTUS in making the metropolitan correctional center prone to suicide mayhem"

09/17/2019

"New York Law Journal" featured law Professor Michael Mushlin's piece in "The Role of SCOTUS in making the metropolitan correctional center prone to suicide mayhem"

Lost in all the attention that has been focused on the Jeffrey Epstein case and the Metropolitan Correctional Center is the critical role the United States Supreme Court played in permitting the MCC to be a site where suicide and other mayhem is more likely to occur.

The Metropolitan Correctional Center in lower Manhattan, the site of the suicide of Jeffrey Epstein, is in shambles. Forty years ago we tried to do something about the MCC’s deplorable conditions but failed when in Bell v. Wolfish, the United States Supreme Court threw out lower court opinions we had won that would have brought the protection of the United States Constitution to that dark place. Lost in all the attention that has been focused on the Jeffrey Epstein case and the MCC is the critical role the United States Supreme Court played in permitting the MCC to be a site where suicide and other mayhem is more likely to occur.

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"New York Law Journal" featured Law Professor Bennett Gershman in "The Exercise of Prosecutorial Discretion"

04/16/2019

"New York Law Journal" featured Law Professor Bennett Gershman in "The Exercise of Prosecutorial Discretion"

Prosecutorial Decision-Making

Whenever discussing prosecutorial discretion, one must immediately turn to Professor Bennett Gershman’s Prosecutorial Misconduct, 2d Ed., Thomson Reuters. Succinctly, “[t]he prosecutor decides whether or not to bring criminal charges; who to charge; what charges to bring; whether a defendant will stand trial; plead guilty… . The prosecutor, in short, holds the power to invoke or deny punishment.” §4.1.

The ABA Criminal Justice Standards for the Prosecution Function (the standards) 3-1.2, reminds us that the “primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.” The prosecutor serves the public interest and, as a “zealous advocate,” “should exercise sound discretion and independent judgment.” While discretion is not entirely unbridled, the fact is that a prosecutor enjoys enormous independence. Gershman §4.1.

Courts will not tell a prosecutor who to charge, when to charge or what to charge. Remember Attica? What about its aftermath? Prisoners claimed they were subjected to cruel and inhuman treatment; they revolted and, during the ensuing riot, 32 inmates were killed and some 400 were wounded. Of the 37 people indicted, all were inmates. The wounded and families of the deceased sought mandamus to compel the U.S. attorney to investigate and prosecute the guards and administrators. The U.S. Court of Appeals for the Second Circuit reiterated the established rule that, incident to the separation of powers doctrine (the prosecutor being a member of the executive branch), courts “are not to interfere” with the discretionary powers of the U.S. Attorney.

This was the case even where the controlling statute stated that the U.S. attorney is “authorized and required” to prosecute certain crimes: “On balance, we believe that substitution of a court’s decision to compel prosecution for the U.S. attorney’s decision not to prosecute, even upon an abuse of discretion standard of review and even if limited to directing that a prosecution be undertaken in good faith [citation omitted] would be unwise.” Inmates of Attica Correctional Facility v. Rockefeller, 477 F 2d 375 (2d Cir. 1973). See U.S. v. Batchelder, 442 U.S. 114 (1979) (“Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.”)

Is prosecutorial discretion a good thing/? Many argue that it can be lawless and tyrannical. Justice (then Attorney General) Robert H. Jackson famously told us: “If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” (The Federal Prosecutor.)

But let’s look at why discretion makes sense, even if there is a glitch or two—or, indeed, likely more. Discretion allows for individualized justice—each target can be looked at in context and treated accordingly. It will also weed out those crimes which are “on the books” but no longer practically enforceable because of changing social mores. Gershman, §4.3. Conflicts of interest or demonstrable bad faith, corruption or misconduct may allow a court to substitute a special prosecutor. But those cases are few and far between. Gershman §4.5.

The standards are instructive, and are an ethical guidepost. However, the charging decision involves “so many factors and considerations that it cannot be reduced to a simple formula.” Gershman, “Prosecutorial Decisionmaking and Discretion in the Charging Function,” 62 Hastings L. J., 1259 (2011). And isn’t that the point? Prosecutors must be able to make a judgment call in order to properly and ethically do their jobs. Of course, prosecutors “should not use…improper considerations, such as partisan or political or personal considerations.” 3-1.6(a). Indeed, a prosecutor should file charges “only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient…and that the decision to charge is in the interest of justice.” 3-4.3(a).

A prosecutor, however, “should not file or maintain charges if it believes the defendant is innocent, no matter what the state of the evidence.” 3-4.3(d). There can be no vindictive, bad faith or selective prosecution—no discriminatory intent, or even effect. See generally, Gershman, Chapter 4; Yick Wo v. Hopkins, 118 U.S. 356 (1886). Establishing discrimination, however, is a “heavy burden” and the exercise of “some selectivity in enforcement of the law is not in itself a constitutional violation.” People v. Goodman, 31 N.Y. 2d 262 (1972).

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"New York Law Journal" featured Pace University’s Elisabeth Haub School of Law in "Pace Law holds leadership dinner"

03/15/2019

"New York Law Journal" featured Pace University’s Elisabeth Haub School of Law in "Pace Law holds leadership dinner"

Pace University’s Elisabeth Haub School of Law held its 24th Annual Law Leadership Dinner at the Westchester Country Club on March 7. The school presented Dennis Kenny (right) of the Law School’s Board of Visitors, and Christopher Fisher (left), managing partner at Cuddy & Feder, with this year’s Distinguished Service Award. Joining the honorees is Dean Horace Anderson.

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