Federalizing Hate
D.C. Circuit Hands Down Major Second Amendment Case

Second Circuit Recognizes Duy to Investigate

Christopher Russo sat behind bars unable to meet bond for 217 days. He kept telling his lawyer that a videotape of the armed robbery for which he was arrested would prove his innocence. He did not meet the description of the man caught on tape. He was sure of it. His lawyer kept asking that the state simply view the tape.

Of course, no one did. A victim of the robbery was shown a lineup. The victim was "one hundred percent sure" Mr. Russo was the stick-up man.  Why bother with corroboration, the police must have reasoned. The State twiddled its thumbs.

The criminal justice system is overburdened. All it takes is probable cause to make an arrest. Proof beyond a reasonable doubt is the trial standard. Police officers, we all know, don't have to conduct perfect investigations.  So goes the littany of excuses raised when men like Mr. Russo languish behind bars.

Almost seven months after Mr. Russo's arrest, when the prosecutor finally looked at the tape, the case was dropped. Mr. Russo was set free.

Mr. Russo brough a claim arising under 42 USC Section 1983 contending that the police failure to consider and bring forward in a timely manner this exculpatory evidence violated his rights under the Fourth and Fourteenth Amendments. The district court granted the defendants' motion for summary judgment.

Case closed? Not according to the Second Circuit. Reversing, the Circuit held that clearly established law required the officers to assure that a defendant not be subject to prolonged detention "caused by law enforcement officials' mishandling or suppression of exculpatory evidence..." The case has been remanded for trial. Russo v. City of Bridgeport, et al., 05-4302, decided February 27, 2007.

The case is a welcome breath of fresh air.

Defense lawyers all too often sound like apologists for the system, explaining to clients and their families why police are permitted to do haphazard investigations. An arrest, we say, is supported by mere probable cause; it takes proof beyond a reasonable doubt to yield a conviction. These words ring hollow to men such as Christopher Russo who sit months behind bars awaiting the moment when the state finally is forced to confront the weaknesses in its case.

I expect a writ of certiorari in this case. The City will not want to be held to a standard of competence. That's too much to ask in the rock 'em, sock 'em world of police procedure. If the case stands, it looks as though it could be of use to penetrate prosecutorial immunity.

Congratulations to Burton Weinstein of Bridgeport. It is a magnificent piece of work.

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