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By Matthew Russell Lee

SDNY COURTHOUSE, August 10 – Before the narcotics conspiracy trial US v. Ernest Murphy set to begin August 12 in the U.S. District Court for the Southern District of New York, Circuit Judge Richard J. Sullivan on August 9 signed an order taking back an initial proposal to partially seal the courtroom during the testimony of a witness.

Now on August 10 the defense has requested a two day continuance of the beginning of the trial, and the US which is to blame and does not answer its mail has supported: "Defense counsel for Ernest Murphy (“Defendant”) submits this letter requesting a two day continuance for the trial currently scheduled for Monday August 12, 2019 so that counsel may review buy videos which were produced for the first time yesterday. The facts and circumstances of this request are set forth below. The Government has told defense counsel that they plan to consent to this request by separate writing. See Exhibit A. Facts About 1 AM on August 9, 2019, the Government uploaded to USAfx roughly 14.6 GB (30 files) of buy videos. Around 10:30 AM the Government produced additional buy videos (1.95 GB) on a DVD which defense counsel picked up. The office of the discovery coordinator Emma Greenwood determined that the videos on the DVD had never been produced to her office. See Email attached as Exhibit B. As to the 14.6 GB of videos, Emma Greenwood’s office could not conclusively determine that they had not been previously produced because the videos were uploaded on USAfx and would take hours and hours to download. That said her office did compare the dates of the subfolders of files uploaded by the Government to USAfx to what was received in global discovery. None of the dates matched dates of videos received in global discovery. See id. This means there is a strong probability that the videos uploaded to USAfx were never sent to Greenwood’s office. If Greenwood’s office did not receive the USAfx videos or DVD videos, defense counsel did not receive it. Yesterday’s disclosure of an additional 16.55 GB of buy videos nearly doubles the total disclosure of buy videos the Government produced in global discovery." We'll have more on this.

Judge Sullivan has yet, however, to respond to opposition to the proposed total sealing of the sentencing of another cooperating witness Jose Rodriguez. Inner City Press is covering both of these days.

Earlier on August 9 Judge Sullivan was set to sentence Murphy's co-defendant Tyquan Robinson. But the sentencing was postponed, for the second day in a row.

  Judge Sullivan submitted Assistant US Attorney Matthew Hellman to intense questioning about why Robinson had been allowed to plead guilty to only the gun count, for a 10 year mandatory minimum sentence, and not Count 1, narcotics. He said that others don't get that deal - why Robinson?

  Already in the gallery, where Inner City Press was again the only media, Robinson's four family members showed concern, later in one case tears.

  Hellman replied that while Robinson maintained the stash house at 672 Decatur Street in Brooklyn it was really a "hovel" ultimately controlled by Murphy, who's set to go on trial Monday. Judge Sullivan repeated this word, hovel - then pointed to Robinson's rap lyrics which Hollman's own sentencing submission had quoted:

"In later music videos, Robinson lionized the shooting as an event which cemented the Boss Crew’s status on the block, and declared, “Talk facts/We don’t fuck with [Victim-1]/That nigga a rat/Broad day so many shots nigga couldn’t throw nothing back.” Id. From this incident and others, Robinson also warned that those who cooperate with law enforcement must be dealt with severely to avoid consequences to one’s crew: “The other niggas stupid/if you shoot a rat off him/If you don’t you gon’ be the only one taking losses.” Additionally, Robinson discussed shootouts on the block controlled by the Boss Crew, stating “So many shootouts man I swear I lost count/but they respect our shit now so I guess it all count.” Id."

 Id indeed. Judge Sullivan asked Robinson's defense lawyers James Roth and Benjamin Silverman pointedly if Robinson had since "changed his tune." Roth said if Judge Sullivan was, as had become clear, considering an upward departure above ten years, he must provide notice.

  And so a briefing schedule was established: Roth's briefing after vacation due on September 9, the government - without rap, we assume - on September 23, and Roth's reply on September 30. No new sentencing date has been set. Inner City Press will continue covering these cases - and in inquiring about transparency. Watch this site.

  As noted this was the second morning in a row a sentencing in this conspiracy got postponed. Judge Sullivan on August 8 was set to sentence Murphy's co-defendant Lloyd Gordon.

  Gordon's family has come to the courthouse, initially to 40 Foley Square then to the sign-less Courtroom 15A in 500 Pearl Street Judge Sullivan has been using. But Gordon's lawyer James Kousouros had argued that the government breached its plea agreement by doubling the amount of drugs it alleges, between the plea deal and its reporting to Probation.

  First Judge Sullivan asked what the remedy would be, if Kousouros was claiming that he as as the judge was bound by the offense level Assistant US Attorney Karin Portlock had initially agreed to.

  While Kousouros, not yet seeing where this was going, answered about unfairness, Judge Sullivan went on to suggest that an evidentiary proceeding known as a Fatico hearing might be necessary.

  Soon Gordon was whispering to Kousouros who then said his client wanted to go forward with sentencing today. But it was too late. Judge Sullivan said by challenging the government's doubling of drug weight Kousouros had let a genie out of the bottle and raised "appellate issues."

 Judge Sullivan apologized to the family members in the gallery, who by the end were nodding in agreement, that yes a possible difference in sentence between seven years and ten years was important enough not to go off half cocked. So Kousouros' brief, after this two and a a half week vacation, is due on September 6, the government's on September 20. And what of Murphy by then, in his partial sealed trial?

  Judge Sullivan earlier on August 8 noted that it is an open courtroom, a strength of our system, anyone can just walk in -- except for US v. Rodriguez, apparently, on which Inner City Press will have more, as well as on the differences between the SDNY's and EDNY's boiler plate plea agreement letters. Watch this site.

 On August 6 Judge Sullivan indicated his willingness pending submission a map to partially seal the courtroom during the testimony of at least one witness, an undercover officer.

  Inner City Press which has been covering the Murphy case some days ago contested sealing in another case before Judge Sullivan, so far without response. It is not clear for this partial sealing what opportunity the press or public have to be heard.

  Assistant US Attorneys Karin Portlock, Elinor Tarlow and Matthew Hellman made the request for partial sealing and argued for it in a final pre trial conference on August 6, with Inner City Press in the gallery. They resisted specifying where the undercover officer proposes to continue operating, referring to a map that is listed as Government Exhibit 114. That map is not online, and recent requests for exhibits have gone unanswered.

  Even if and when this exhibit it shown to the jury, there is no video monitor for the press and public gallery in SDNY Courtroom 15A Judge Sullivan has been using, which has for example no swinging doors by the jury box and no name on the front door.

  The government request states, and Judge Sullivan on August 6 repeated, that an audio feed would be provided into another courtroom and a court reporter's transcript available in 24 hours - if, it seems, one can afford it. Even Murphy's lawyers said they cannot afford the Live Feed that Judge Sullivan and the government counsel table will have.

  Judge Sullivan in his affable way asked defendant Murphy if he had been informed of a plea offer, to a five to forty year sentence, previous offered. Murphy said yes, adding "I'm not guilty."

  So the trial will begin on August 12, with the witness listed with a pseudonym such that potential jurors won't know if they know the person - apparently a woman - or not. We'll have more on this.

  The day before the final pre trial conference, on August 5 a co-defendant of Murphy's was sentenced to 54 months imprisonment.

  Robert Rhodes was a part of this alleged crack conspiracy for 11 weeks, responsible for 155 grams of crack. But as Judge Sullivan noted, Rhodes previously served two years for shooting a man in the shoulder - then got out of jail and sold crack.

  Rhodes' lawyers Sarah M. Sacks and Bennett M. Epstein asked for 36 months, citing personal tragedy, time in the cold at the MDC and that the State of New York provided a dangerous handball court then got Rhodes addicted to opioids.

   Assistant US Attorney Karin Portland, who will prosecute the Murphy trial starting August 12, emphasized that even addicted to opioids, Rhodes sold drugs to others. Judge Sullivan dug into this, and to other issues, pointing out that they cut both ways, like the family support Rhodes has. He had the support when he committed the crimes, too. At a fifteen minute break to deliberate, Judge Sullivan explained his reasoning for the 54 months, saying public explanations are important. Inner City Press agrees. We'll have more on this.

Ten days before the Murphy trial, a wildcard arose on August 2. It is a gun from a 2013 shooting in Brooklyn that may be connected to defendant Ernest Murphy but is not, the government concedes, connected to the narcotics conspiracy.

   Judge Sullivan fired off hypotheticals at Assistant US Attorney Matthew Hellman: if you, Ms. Portlock and I were in a conspiracy and I asked you to buy me lottery tickets, would that be evidence of the conspiracy?

  When Hellman said that a gun or disposing of a gun is different in that it is a crime, Judge Sullivan ask if the three of them were in an insider trading conspiracy, would it be relevant if he asked Hellman to go rob a convenience store?

  That may be the operative word, convenience. The defense sought an adjournment of the trial date to hire an expert; the government indicted it would consent to an adjourment from August 12 to September 9.  "You're trying to take over my schedule?" Judge Sullivan asked. He said the trial will go forward on August 12, with a final pre-trial conference next week. Inner City Press will follow this case, US v. Tyshawn Burgess, Ernest Murphy et al., 18-cr-373 (RJS), and other cases including those below.

Back on July 22 in a court proceeding that began as open, with the defendants' family members and even legal interns present, Inner City Press was ordered to leave, leaving no media or member of the general public present.

  It took place in the U.S. District Court for the Southern District of New York at 500 Pearl Street in Courtroom 14C before Judge Paul A. Crotty: USA v. Perlson, 18-cr-751.

  When Inner City Press went in at 11:30 am, at first Judge Crotty was asking why a transcript in the case said it was from November 31, when November has only 30 days.

  "Good catch," the Assistant US Attorney said, adding that he thought it was from October 31. He added that Perlson would now be allocuting to Count 2 and that there was a cooperation agreement.

  Suddenly the lawyers pointed out Inner City Press in gallery, and said while legal interns were OK then objected to Inner City Press' presence. Judge Crotty asked Inner City Press to identify itself.

  "I am a reporter. If you are going to try to close a public courtroom there must be specific findings, for specific portions. There is case law."

  There followed a sidebar, apparently transcribed, from which Inner City Press was excluded. At the end Judge Crotty while ordering Inner City Press to leave said that the government's case is moving along well and that he hoped to unseal the transcript in a month.

  But is that enough? Inner City Press left the courtroom as ordered, adding as it left that a case on point is United States v. Haller, 837 F.2d 84, 87 (before closing a proceeding to which the First Amendment right of access attaches, the judge should make specific, on the record findings demonstrate that closure is essential to preserve higher values and is narrowly tailored to serve that interest).

  But Inner City Press was not given an opportunity to make its argument before being ordered out. And once back to the PACER terminal at which it has been working for months, searching by "Perlson" resulted in nothing, and 18-cr-751 "case not found."

 Inner City Press will have more on this - see also @InnerCityPress and the new @SDNYLIVE.

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