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Law360, New York (June 19, 2020, 7:26 PM EDT ) In a series of filings Thursday, federal defenders effectively challenged the indictments handed down by the Brooklyn federal court's lone grand jury on its first day back, arguing that defendants were denied a representative group of their peers due to COVID-19 restrictions.
The Federal Defenders of New York told judges in eight separate cases that the first tranche of indictments handed down on June 11 — after a three-month hiatus caused by the pandemic — are suspect because the only grand jury currently sitting for the Eastern District likely fails the requirement that grand juries be "selected at random from a fair cross-section of the community."
"It is highly unusual for cases brought by prosecutors in Brooklyn to be presented to a grand jury in Central Islip," said Deirdre von Dornum, attorney-in-charge of the Federal Defenders for the Eastern District of New York. "We are concerned that this grand jury, because it sat when residents of Brooklyn, Queens and Staten Island were under stay-at-home orders, was not made up of a fair cross-section of the Eastern District of New York, as required by law."
Essentially, the federal defenders worry that the demographics of the grand jury pool were skewed because Long Islanders were more likely to show up, unfairly tainting the indictments. Central Islip is 40 miles east of the Brooklyn federal courthouse in Suffolk County, where the state has eased pandemic restrictions that are still in place in New York City.
Demographics on Long Island are far less diverse than in the city. Suffolk and Nassau counties are 84% and 74% white, respectively, while both Queens and Kings counties are less than 50% white and are home to 2 million more residents collectively than the Long Island counties, according to U.S. Census Bureau records.
The indictments include one for Samantha Shader, who is charged with firebombing an NYPD vehicle amid protests against police brutality. While the defenders did not file a motion in a separate Molotov cocktail case against two attorneys — Urooj Rahman and now-suspended Pryor Cashman LLP associate Colinford Mattis — any ruling could impact that case as well.
The U.S. Attorney's Office for the Eastern District of New York declined to comment. The district executive did not immediately respond to a request for comment on Friday.
In their near-identical motions, the various federal defenders argued that the defendants in these cases have likely been denied their constitutional right to a representative jury of their peers, demanding papers used in the jury selection process.
In an appended declaration and a two-page list of requested documents, statistician Jeffrey Martin sought information on the jurors' gender, race, ethnicity, age and place of residence.
Martin also sought "the attendance record and reason for absence by date for each grand juror" in order "to determine the demographic effects of the current pandemic on the operation of the grand jury in this case."
The same grand jury handed down at least another six indictments on Thursday, according to a review of court records by Law360 on Friday.
By 6:00 p.m. on Friday, three judges in four cases had set dates for the government to respond to the motion in the next week or two.
U.S. District Judge Dora Lizette Irizarry, the judge in Shader's Molotov cocktail attack case, set a July 2 date for the government to respond to the motion for grand jury records, but swatted away the motion to dismiss the indictment as "insufficient," noting that the request needed to be supported by a memo or grounds for dismissal.
"If defendant seeks to dismiss the indictment, defendant must do so properly," the judge ruled.
The cases are U.S. v. Melendez, case number 1:20-cr-00197, U.S. v. Plasencia, case number 1:20-cr-00200, U.S. v. Frazier, case number 1:20-cr-00201, U.S. v. Shader, case number 1:20-cr-00202, U.S. v. Fludd, case number 1:20-cr-00204, U.S. v. Arthur, case number 1:20-cr-00205, U.S. v. Cruz, case number 1:20-cr-00206, and U.S. v. Deutsch, case number 1:18-cr-00502, in the U.S. District Court for the Eastern District of New York.
--Editing by Adam LoBelia.
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