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New York State Bar Association

March 10, 2017
Discussion Hypothetical

Ali Akbar, just turned 16, chronically asthmatic and small for his age, dreaded
school. Endless bullying about his name, his faith, his bookishness and his size
made Mohawk City High School a war zone for him. But now he finally found what
seemed like a solution: a toy gun that looked so real, so menacing, that he hoped he
could use it to make his tormenters back off.

On his first day back at school after the holidays, with his new weapon secure in
his pocket, Ali hoped he would not have to test its efficacy. Alas, no such luck. As he left
the schoolyard and started to walk home, two boys jumped him, knocked him to the
ground, shouting taunts and with their fists flying. Kicking to fight them off, he
brandished his weapon which had its intended effect. One boy ran and the other froze in
place. A crowd of students had gathered, at least one of whom grabbed his smart-
phone and pressed record.

Alis peers were not the only witnesses. Officer Pedro Nunez, on patrol at the
corner, saw a glint of silver in Alis hand and immediately rushed to prevent what
appeared to be an assault or attempted assault with a deadly weapon. Ali, who had no
experience with law enforcement, was terrified. With the toy gun still in his hand, he
turned toward Officer Nunez, who responded with gunfire. Hit in his leg, which was
bleeding profusely, Ali fell to the ground.

The next several hours were a blur emergency room treatment, then what
seemed like endless interrogation at the precinct, an uneasy night at the Mohawk
County Jail and, finally, an appearance before Mohawk City Court Judge Olivia Laws on
a criminal accusatory instrument charging a variety of misdemeanors. Public Defender
Lance Donnelly requested that Ali be released on his own recognizance since he had
no prior record, was only charged with misdemeanors and had long-standing ties in the
Mohawk community. Mr. Donnelly also asked that the proceedings be closed and the
record kept confidential, since Ali may qualify for Youthful Offender treatment that would
compel sealing of his record. Stressing her intent to seek a violent felony indictment
against Ali, District Attorney Elizabeth Hand opposed the confidentiality request and
sought $100,000 bail. Stressing Alis lack of criminal history, Judge Laws released him
but denied the confidentiality application.
Outrage erupted immediately upon Judge Laws decision. Mohawk City Mayor
Daniel Plum, relying upon his favorite web-site,, tweeted that Alis
release was an affront to justice in light of the web-sites allegation, albeit unsupported
by any evidence, that Ali had a long history of gang involvement, including several
juvenile delinquency cases, and that his refugee status was in part to blame. The
Mayors tweet posed a dilemma for Mohawk Daily Record star reporter, Lois Blaine.
What the Mayor says is clearly news that the public has a right to hear, but what if it is
based entirely upon a web-site widely known for fake news? Ms. Blaine contacted the
court system for Alis juvenile delinquency record, but, citing confidentiality, the court
systems Public Information Officer replied that he could neither confirm nor deny that
Ali had any record, let alone provide the contents of such a record if one existed.

The Mayors tweet went viral as local radio talk show hosts, interviewees on
cable outlets and the Mohawk community on social media decried the gang violence
and prevalence of weapons among juveniles, in particular, those of foreign descent. At
the same time, protests were held both to demand that Officer Nunez be investigated
for use of excessive force and to underscore the political campaign for New York State
to raise its age of criminal responsibility to shield alleged offenders as young as Ali from
the adult criminal justice system. Public Defender Donnelly returned to court and
requested an immediate gag order, charging that the Mayors inaccurate statements,
echoed by other public figures and the media, would irreparably taint the jury pool. He
asked for an order directing that, FaceBook and media web-sites
take down the inaccurate and harmful postings. Assistant District Attorney Hand echoed
the request, alleging that protesters had spread false rumors about Officer Nunez
history on the police force, specifically, that he had several bouts of depression,
psychiatric hospitalizations and disciplinary actions. The Records noted First
Amendment attorney, Boyd Larson, appeared in opposition.

Following Alis arraignment on a grand jury indictment for attempted assault on a

police officer, a Class D felony, and criminal use of a firearm in the second degree, a
Class C felony, he was held on relatively low bail $2500 but it was at a level that
neither he nor his distraught parents could meet. Ali didnt qualify for assistance from
the charitable bail organization run by the familys Mosque, since he was charged with a
felony and his bail exceeded the $2000 statutory limit. Once again, Ali was sent to
Mohawk County Jail. Prodded by those who had protested on his behalf, Ali granted an
exclusive interview to local TV reporter, Carey Ling. Mr. Lings hour-long conversation
with Ali was condensed to a three-minute spot on the local Mohawk news.

Public Defender Donnelly submitted a comprehensive discovery motion to

County Court Judge Clayton Mallory, coupled with a motion to suppress any statements
made by Ali during his interrogation. Mr. Donnelly requested access to Officer Nunez
grand jury testimony, the video from Officer Nunez body-worn camera, video from the
unnamed student who recorded the encounter, video of the interrogation of Ali and
Officer Nunez entire personnel file, including his disciplinary, Employee Assistance
Program and County Civilian Complaint Review Board records. He further moved for a
change of venue in light of the storm of publicity and social media postings engendered
by the Mayors tweets. Assistant District Attorney Hand opposed these requests and
added a request of her own, that is, for the out-takes of Alis jailhouse TV interview.

Close upon Mr. Donnellys heels, Record reporter Lois Blaine submitted a
Freedom of Information Law request to the District Attorneys office requesting the very
same information. Countering with arguments regarding the considerable expense,
extreme burden and confidentiality of much of the material requested, most especially
the police personnel record and adding that her office did not possess the students
smart-phone video Assistant District Attorney Hand refused to comply. Bolstered by
amici submissions from local mainstream, on-line and cable media, attorney Larson
applied to County Court Judge Mallory, who also sits as an Acting Supreme Court, Civil
Term, Justice, for disclosure of the requested material. At the same time, the attorney
for the TV station applied to Judge Mallory to maintain the confidentiality of the
jailhouse interview out-takes.

Buried under a mountain of motions, Judge Mallory contemplated his rulings.