A case to make prosecutors personally accountable

Alexina Simon was picked up as a witness in a minor criminal case. Prosecutors in Queens held her over two days without a lawyer. Now, she wants to hold them to pay individually for what she says was misconduct

It wasn't much of a case: Queens prosecutors wanted to prosecute a woman for having falsely reported her car stolen in a bid to collect on theft insurance. A non-violent crime. Small-time really.

But the prosecutors went to unusual lengths in 2008 to try and make the case. They tracked down a person they thought had information about the alleged fraud, told her she was under arrest, and over the course of two days interrogated her in a room in the Queens District Attorney's office. The woman, Alexina Simon, was not a suspect. She was, in truth, nothing more than a potential witness.

Today, Simon is the named plaintiff in a federal case that has reached the U.S. Court of Appeals for the Second Circuit. The case is noteworthy for two reasons:

It shines a light on the issue of what are known as material witness orders, a poorly understood aspect of New York's criminal justice system in which people who are potential witnesses to crimes can be detained, evaluated and perhaps compelled to disclose what they know.

The case is also seeking a remedy that those concerned about misconduct by the country's district attorneys have long sought, namely that individual prosecutors be held personally liable for their misdeeds.

Lawyers for Simon have argued that the prosecutors in the case failed to do what is required when such material witness orders are granted by a judge — bring the witness before that judge and make sure that witness has a lawyer. Simon, they say, had no meaningful information about the alleged fraud. That might have been sorted out had proper procedures been followed, they say. In all likelihood, they suggest, prosecutors not only would have figured out that she had no information, but also that she, owing to a mix up in names, was not the person they were actually looking for.

Instead, Simon says she was detained twice — arrested first at work and then at home the following day — and questioned for hours without a lawyer.

Lawyers for the Queens prosecutors have insisted Simon willingly cooperated and thus the warrant they had obtained, and the requirements that came with it, didn't apply. They argue further that, even had the prosecutors erred, they were, under the law, immune from being held personally liable for their misconduct.

A district court judge ruled for the prosecutors, holding that the broad protections given to law enforcement officials as they pursue cases applied in this instance. But the case was appealed, and since then, a brief has been filed by the U.S. Department of Justice in support of the district court's ruling and another has been submitted by defense lawyers in opposition. A decision is expected soon.

The issue of the use and misuse of material witness orders came under scrutiny after 9/11. Federal authorities used the warrants to lock up any number of people they suspected might have information about terror investigations. A subsequent lawsuit that sought to hold former U.S. Attorney General John Ashcroft personally liable for the abuse of material witness orders made it to the Supreme Court, which held that Ashcroft was immune.

The use of material witness warrants in state cases has garnered far less attention and the Simon case has to date been a relatively obscure one. But a lawsuit brought by a man who says he was wrongly prosecuted for murder could give the use of material witness warrants in state prosecutions an explosive airing.

Lawyers for Jabbar Collins, who spent 16 years in prison before prevailing in a rare federal petition for his freedom, have accused Brooklyn District Attorney Charles J. Hynes of running what amounts to his own civil jail system. Collins's lawyer, Joel Rudin, has charged in court papers that he has evidence Hynes's office routinely and illegally detained witnesses to compel and sometimes coerce testimony.

Hynes's office has denied the assertion.

For Rudin and other defense lawyers, the misuse of such warrants — locking people up until they tell a story the prosecutors need told to make a case — could be a central cause of the kinds of wrongful convictions that, again and again, have been uncovered across the country in the last decade or so. And they argue that the problem is not likely to be corrected unless prosecutors can be held personally responsible.

The abuse of such warrants, Rudin wrote in a brief that is part of the Simon case before the appeals court, "threatens the rights of individuals held as material witnesses to prompt arraignment, representation by counsel, and an independent determination of their status." Granting prosecutors immunity when they abuse the warrants, he wrote, "would deny aggrieved individuals any compensation or other remedy for their constitutional injuries and would encourage law enforcement authorities to continue such practices."




Railways asked to pay Rs50,000 for two year delay in processing refund

The forum’s order came on the complaint by Delhi resident Pulastya Pramachala who had alleged that he had filed the refund request in April 2010, but it was not processed for over two years and then was rejected in May last year on the ground that he had filed the claim late

Pulling up the Indian Railways for taking over two years to process a passenger’s refund request and then ‘illegally’ rejecting it, a Delhi consumer forum has directed it to pay a compensation of Rs50,000 to the complainant.


The New Delhi District Consumer Disputes Redressal Forum held Indian Railway Catering and Tourism Corporation (IRCTC) directly responsible for the delay as the refund request for cancelled ticket was to be forwarded to the railways zone concerned by IRCTC.


“We hold all the opposite parties (chairman of the Railway Board, general manager of Northern Railways, chief commercial manager of South East Railways and IRCTC) guilty of deficiency by taking unduly long time in processing the refund claim of complainant and then rejecting it illegally.


“The opposite party (IRCTC) has contributed directly to the delay and harassment and inconvenience to complainant and his family,” a bench presided by CK Chaturvedi said and directed the parties to jointly and severally pay Rs25,000 as compensation to Delhi resident Pulastya Pramachala along with Rs25,000 as cost of litigation.


The forum asked the chairman of Railway Board to examine the rules and regulations governing time limit for claiming refund and processing it “so that consumers are not made to litigate for refund”.


The forum also observed that the Railways acted “penny wise and pound foolish” by spending public money to defend such cases in courts and said the Board should direct Indian Railways “to make the refund in court (forum) on first hearing itself rather than contesting such cases”.


The forum’s order came on the complaint by Pulastya who had alleged that he had filed the refund request in April 2010, but it was not processed for over two years and then was rejected in May last year on the ground that he had filed the claim late.


IRCTC had contended in its defence that refund claim was rejected as it was not filed within 12 hours of cancellation of ticket as per the rules and regulations governing ticket cancellation.


The forum rejected the contention, saying that as per the Railway Act, 1989, the Railways “in no case can refuse refund of a cancelled ticket”.


“It (Railways) cannot make rules or regulations or time limits for presenting refunds, in a manner which would lead to refusal of refund on grounds of late presentation. It can only prescribe the cancellation charges, etc,” the bench said.


The forum also noted that the Railways has set a time limit of a few hours for passengers to file the claim, but it has laid no such limit for itself.


“The complainant in this case sent a number of emails, requests and contacted service centres, wasting his time, money and effort, with all anxiety and distress for absolutely unreasonable delay of two years in getting a reply that the request has been rejected.


"Such an unreasonable delay is total imperfection in rendering services,” the forum noted and also directed Indian Railways to refund the ticket fare after deducting the applicable cancellation charges.


Nifty, Sensex headed lower: Weekly Market Report

A strong downmove may have started which  may take the Nifty to 5,940 and then to 5,850

The market closed the week with minor gains amid high volatility throughout the week on account of the expiry of the May F&O contract and the release of the GDP numbers for the last quarter of 2012-13 and the full fiscal. The dismal GDP numbers saw the benchmarks tumbling over 2% on Friday, their single day percentage fall in nearly 14 months. Timely arrival of the monsoon rains is expected to give the market its short-term direction.


The Sensex settled 56 points (0.28%) higher at 19,760 and the Nifty rose a mere two points (0.04%) to close the week at 5,986. The benchmarks closed in the positive on three of the five trading days. For the month of May, the Sensex climbed 1.31% and the Nifty gained 0.94%.


A strong downmove may have started which will may take the Nifty to 5,940 and then to 5,850.


The benchmarks settled 1.66% higher on Monday on support from the oil &gas, consumer durables and healthcare sectors. The market ended in the green on Tuesday on support from its Asian peers. The indices closed with minor losses on Wednesday, ahead of the F&O contract expiry.


Late buying in fast moving consumer goods and auto stocks helped the market close in the positive on Thursday.  Poor economic growth, coming in at a decade low of 5% for FY’13, saw the market tumble over 2% on Friday.


The BSE Consumer Durables index (up 4%) and BSE Auto index (up 3%) were the top sectoral gainers. The top losers were BSE Realty (down 6%) and BSE Bankex (down 2%).


The key gainers on the Sensex were Tata Motors (up 9%), Sun Pharmaceutical Industries (up 8%), Hero MotoCorp (up 6%), Coal India (up 5%) and BHEL (up 4%). The main losers were Cipla (down 9%), Tata Steel (down 7%), State Bank of India, GAIL India and Hindalco Industries (down 5% each).


The Nifty was led by Tata Motors (up 9%), Sun Pharma (up 8%), Hero MotoCorp (up 6%), Coal India (up 5%) and BHEL (up 4%). The main laggards on the benchmarks were Cipla (down 9%), DLF (down 8%), IDFC, Tata Steel (down 7% each) and Bank of Baroda (down 6%).


India’s economic growth slowed to 4.8% per cent in the January-March quarter and fell to a decade's low of 5% for the entire 2012-13 fiscal on poor performance of farm, manufacturing and mining sectors. Gross domestic product (GDP) had expanded by 5.1% in January-March quarter of the last fiscal and stood at 6.2% for the 2011-12 fiscal.


Reserve Bank of India (RBI) governor D Subbarao on Thursday said that the central bank is concerned about the country's current account deficit (CAD) and high retail inflation. The result of the high current-account deficit has been the depreciation of the rupee, he added.


Among companies which declared their corporate results in the week, Larsen & Toubro’s (L&T) net profit fell 6.9% to Rs1,787.94 crore on 9.9% rise in total income to Rs20,686.93 crore in Q4 March 2013 over Q4 March 2012.


Coal India (CIL) reported almost 35% rise in the consolidated net profit at Rs5,413.9 crore for the fourth quarter ended 31 March 2013compared to Rs4,013 crore for the comparable period of the previous fiscal. The consolidated net sales of the PSU went up to Rs19,904 crore from Rs19,418 crore in the quarter under review.


In international news, US markets alternated between gains and losses during the week amid speculation about whether the Federal Reserve will continue the current pace of buying $85 billion of debt each month or cut its purchases.


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