Monday, July 27, 2020

Federal judge rightly upset over wrongful jailing of Michael Cohen

That's the title of my latest piece in the Hill.  Please click on the link for the whole article and let me know your thoughts.  Here's the intro:
Federal district judge Alvin Hellerstein was rightly outraged that a probation officer acting on behalf of the Bureau of Prisons had Michael Cohen arrested because he was writing a book about President Donald Trump and because Cohen would not agree to give up his First Amendment rights as part of his supervised release. The judge found that “the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others."
It is almost unheard of to see a federal judge get upset with a probation officer or the Bureau of Prisons. That’s because there is a fiction in the criminal justice system that a probation officer is an “arm of the court.” Criminal law practitioners, however, know the truth about probation officers — they often are advocates for the executive branch (prosecutors) and can push harder than even prosecutors do for draconian prison sentences.
Look at what happened with Cohen — he was arrested without approval from a judge and without his lawyers having the ability to argue his position with a judge before the arrest. And what was the supposed justification by the arresting officer? Cohen was “antagonistic” and did not want to sign a document outlining conditions of his ongoing release.
DOJ tried to come to the defense of the prison system and probation, arguing that Cohen’s lawyer was trying to “haggle” with the probation officer about wearing an ankle monitor. The judge made quick work of that argument: “What’s an attorney for if he is not going to negotiate an agreement with his client?”
You might be thinking that it is outrageous for a probation or prison officer to have this much power. If so, it’s even worse than you think. Although prosecutors and defense lawyers are not permitted to speak to the judge without the other side present, probation officers typically meet with judges alone, making their recommendations in secret without the parties getting a chance to be heard. And judges often defer to prison officials.


Anonymous said...

Stop the posturing! The real crime here is eating at a posh restaurant. Does anyone really believe that if that picture had not been in the NY Post, Cohen would have been arrested?

Anonymous said...

Probation officers have no jurisdiction over BOP cases. They may assist with supervision but the decision solely rests with the Bureau of prisons. In cases like Cohen where they are released by BOP‘s authority they can be reunited with the jail under BOP authority if they break the rules or appear to break the rules. They are inmates. Sometimes they have their own contracted people monitor them and sometimes they ask probation to assist. But ultimately the decision to recapture any inmate rests with BOP.

Anonymous said...

Dear "bop jurisdiction" guy:

We got it. OMG relax. The POs were a huge part of what happened. They told BOP cohen "refused" to sign which appears to be a total mischaracterization of what went down.