Success in a legal matter can be measured many ways. Success can be overstated in many ways. We count success as the case in which the client is satisfied that we have done everything that could be done to get the best possible result.
Sometimes our successes must be kept to ourselves, such as in cases where the client was the target of an investigation which never resulted in an arrest and prosecution.
However there are cases where the success on pretrial motions, or in a trial or on an appeal or a post-conviction proceeding is so singular, and so much the product of the particular kind of hard work and excellence that we try to foster at Harrington & Mahoney, that they deserve to be singled out for consideration by anyone thinking of hiring our firm. While the range and size of these cases may differ, what does not change is the approach taken to the case — thorough preparation on the facts and the law and intelligent execution of the trial strategy.
We point out, however, that any success in past cases can not be used as a predictor of what will happen in the next case. And, no attorney can, or should, give any guarantee or promise as to the outcome of a case
"White Collar" — United States v. John Rigas, et al.: The "Adelphia" Trial
In one of the "Top Cases of 2004" , after a 6 months of trial in a Manhattan federal courtroom, Mark Mahoney walked out with the only client acquitted of all 23 counts of an indictment alleging billions of dollars in Securities Fraud, Wire Fraud, Bank Fraud and Conspiracy. The defendants were John Rigas, the founder of Adelphia Cable Company, the sixth largest cable company in the country, his two sons, Tim and Michael, and our client, Michael C. Mulcahey. There were over 12 million documents in the case, and 11,000 exhibits marked for trial which was conducted in a "hi-tech" courtroom relying on electronic displays, all managed by nationally known litigation support (DOAR) and forensic accounting (Navigant) firms. This acquittal went against a tidal wave of convictions of corporate officers following the Enron and Arthur Andersen investigations, and was based on our proof of the actual innocence of the accused and overreaching by the government. Incidentally it is regarded as the first time a Buffalo attorney has appeared in, and won, a trial in New York City since the great Frank G. Raichle defended Roy Cohn in federal court there 35 years previous, both getttig acquittals!.
Asperger's and Autism Spectrum Disorder
In the highly politicized and ideological terrain of online sex offenses there are many tragic stories of developmentally disabled persons who have been seduced by the ready availability of sexual images of children on the internet, and sexualized discussions with minors in social media. Though unaware of the wrongdoing or criminality that is attributed to this behavior, they may face huge mandatory minimum senteces and registration as sex offenders. Harrington & Mahoney has an unequalled record of obtaining reduced charges and sentences and avoiding sex offender registration in these cases, across the United States. We have done this through tireless and intelligent preparation and advocacy.
Beginning with the 2007 arrest of a 19-year old college freshman with Asperger's Syndrome on child pornography charges, we undertook to learn everything possible about the critical role autism spectrum disorder plays in making young men vulnerable to engaging in this behavior without being aware of any serious wrongdoing, and without presenting a risk to children. In 2009 the experienced federal prosecutors in the case agreed to allow the young man to plead guilty to an offense which did not require sex offender registration, and to a sentence of probation. This was unpecedented Since then, in cases across the country, in state and federal courts, we have been able to achieve, or have helped other attorneys to achieve similar and even better results - agreements not to prosecute and "pretrial diversion" agreements. We do this by working with the best local attorneys, with experienced autisim clinicians, and doing exhaustive research and writing, and then doing our best to educate prosecutors and investigators about autism, and how it has affected our client. We do this mostly by working with prosecutors, addressing their concerns, not "beating" them, or "winning" in a litigation sense. We appeal to them as human beings, and as government officers bound by the Americans With Disabilities Act and the Rehabilitation Act, using empirical facts and science. While it has not been possible to get these extraordinary results in every case, Mr. Mahoney's efforts have helped avoid harsher results expected in other cases. With his extensive lecturing and writing on this subject, it is hoped that other attorneys can begin to have some of the same extraordinary successes.
People v. Jonathan Parker. Though the District Attorney in Erie County was, by comparison, cautious about bringing a death penalty case, when Jonathan Parker shot and killed an on-duty police officer this too was destined to be a capital case, and here no plea was to be offered. Jim Harrington was appointed as lead attorney and engaged in extensive pretrial preparation designed to save the life of his young, but troubled client. This was the only death penalty trial held in Buffalo since the reinstatement of the death penalty, and it had all the makings for a death verdict.
The victim was an African-American police officer, and so there could be no plausible claim of racism if this African-American defendant were given the death penalty. But using both the guilt/innocence stage and the penalty stage of the trial to advance the few mitigating issues that could be uncovered, and skillfully preparing his uneducated client to address the jury, Jim movingly persuaded the jury to vote against the death penalty.
People v. Michael Grinnell. The District Attorney in Batavia, NY, had bragged about the local history of hangings and electrocutions, arguing that capital punishment "has been a traditional and commonplace form of punishment throughout the long history of Genesee County." And so, when Michael Grinnell and Jake Russell were charged in the brutal slaying of two other young coworkers in their traveling magazine sales crew, in 1996, it was no surprise that the death penalty was sought. This case was among the first cases brought under the new statute, and it was the first to actually be scheduled for a trial. Because the killing was accomplished literally by "stoning" the two to death, it had very dark undertones. Mark Mahoney was appointed as the lead counsel in the case for Grinnell.
His groundbreaking efforts to set a procedure for jury selection in death penalty cases became the model for cases which followed [Mark had written a chapter on jury selection for the Capital Defender Office's manual]. But his pretrial motions attacking the indictment and his extensive preparation for th trial resulted in the state agreeing to forego the death penalty against Grinnell, despite the fact that his co-defendant had agreed to testify against him.
Jim represented a Georgia inmate convicted and sentenced to death for killing a police officer after a robbery. He obtained a remarkable state habeas corpus decision setting aside the death sentence and directing a new sentencing hearing. This decision was just reversed by the Georgia Supreme Court, and the case will now go to federal court. Robert Wayne Holsey v. Derrick Schofield, Warden, 642 S.E.2d 56, 7 FCDR 492 (Ga. 2007) Murder
Harvey Miles was charged in 1994 with killing another young man in a street shootout, after the victim made threats against him. Even though no weapon was found belonging to the victim, Mr. Harrington persuaded the jury, through cross-examination of the prosecution witnesses and the testimony of the accused, that this was a legitimate case of self defense and Mr. Miles was acquitted.
Inspections at the border with Canada, especially in the past few years, result in many criminal charges involving the smuggling of controlled substances. Frequently drugs are concealed in tractor-trailers coming across the bridges and invariably the driver is arrested. Because the proposition of guilt is plausible, and the consequences of conviction enormous, it takes considerable courage for an accused to go to trial. In a string of cases of this type, Jim achieved complete acquittals for his clients. U.S. v Beant Mann (2004) ( 450 lbs. of marijuana hidden in trailer); U.S. v. Tarlochan Jagpal (2006) (585 lbs. of marijuana hidden in trailer); U.S. v. Desmond Williams (1987) (270 lbs. of marijuana hidden in trailer); U.S. v. Huy Nguyen (1988) (Passenger in a car which had 20 lbs. of heroin in suitcases, and expert witnesses were presented to testify that in Vietnamese culture, the accused would never inquire of the driver, who was his elder, what was in the suitcases).
In some cases we have achieved rare successes in arguing that the police investigation was conducted in violation of constitutional rights, like People v. Terrence Miles (1993 Greene County) (Stop on the New York State Thruway for a "seatbelt violation" which resulted in seizure of 1 kilogram of cocaine in the trunk and seizure was found to be illegal); People v. Tracy Fonville (1994 Erie County) (Wiretap, resulting in seizure at the Buffalo Airport of 2 kilograms of cocaine, found to be illegally obtained, resulting in suppression of the evidence and dismissal of the indictment); U.S. v Nigel Bostic (1991) (Seizure at Buffalo Airport of 8 oz. of cocaine ruled illegal and the evidence was suppressed and the federal indictment was dismissed).
Jim Harrington has obtained acquittals in several federal drug cases where the evidence of guilt was very strong. In U.S. v. Larry Holmes, in 2001, our client had been present with a friend during a drug transaction with an FBI informant which was recorded by video camera, but was acquitted after it was shown that the informant had lied on the witness stand and to the FBI.
In U.S. v. Michael Green, in 2000 (Rochester), our client was charged with multiple sales of cocaine to an informant which were observed by the federal investigators. He was acquitted after the defense showed that it was a possibility that the informant had lied and misled the police, and that the accused had sold marijuana, not cocaine.
A successful attack on the credibility of the informant also resulted in an acquittal in U.S. v. Charles Nocita, in 1999, where Mr. Harrington's client was charged with delivery of methamphetamine to an informant in California and conspiracy to deliver drugs to New York.
Sex Offense Cases
Among the most challenging criminal cases are those where children accuse adults of sexual abuse. Certainly there is no presumption of innocence in these cases. However we have obtained acquittals in these cases as well. In People v. Merrill Lewin (1996 Erie County) Mr. Harrington's client was charged with sexually abusing his grandson, and was acquitted acquitted by the jury after the boy's credibility was challenged on cross-examination.
The accused in People v. Michael Mitzo (2005 Erie County) was a day care center worker charged with sexually abusing a child at work, and in People v. Patrick Knoop (2002 Erie County) our client was charged with sexually abusing his girlfriend's child. In each case our client was acquitted by the jury after Mr. Harrington's cross-examination of the child, and our attack on the quality of the investigation.
In People v. Stephen Kantor (2003 Niagara County) our client was charged with forcible and statutory rape of a young woman he met on the internet, after the police claimed he made incriminatory admissions to them. Mr. Harrington's cross-examinations of the detectives, showing that the supposed "admissions" were not true, and of the complaining witness, resulted in a "not guilty" verdict.
Because of our appellate experience, we are frequently asked to prepare briefs in significant cases to advance the position of a party appearing as "Amicus Curiae" ("Friend of the Court"). In a rare recent example the New York Court of Appeals reached out to the criminal defense bar, on very short notice, to submit an amicus curiae brief in a matter where the defendant before the court had no attorney, and where important constitutional principles, involving police search and seizures, were involved. We helped prepare the brief, and the New York Court of Appeals adopted our position that an arrest outside a police officer's area of jurisdiction is not valid, and that such an officer cannot claim that they were merely making a "citizen's arrest" to avoid the limits of their geographic jurisdiction. People v. Jason Williams, 4 N.Y.3d 535 (2005).
Pro Bono Publico
When Governor George Pataki refused to allow attorneys defending death penalty cases seek payment for the time expended by associates and paralegals in their firms, it was not just an affront to the Court of Appeals, which had approved rates of compensation for such staff (based on Mark Mahoney's published papers on the subject) It was also an assault on the taxpayers, because it would cost far more to have the appointed attorneys perform work that could be capably done by their staff billing at a lower rate.
Accordingly Harrington & Mahoney commenced an action against the governor. After four years of litigation, involving an initial appeal by us when the trial judge erroneously ruled that we had proceeded with the wrong type of action, and another appeal after the trial judge, hearing the matter again, finally ruled in our favor, we prevailed in a unanimous decision against the Governor in, Mahoney v. Pataki, 98 N.Y.2d 45 (2002).
After a conviction is affirmed on appeal, it is most difficult to succeed in any further post-conviction proceedings. Harrington & Mahoney has had experience and success in the past in federal and state post-conviction matters. The a recent example of these was the case of People v. Brian Sherk, 269 A.D.2d 755 (4th Dept. 2000) in which the trial judge's denial of a motion to vacate the conviction (CPL Art 440), on ineffective assistance grounds was reversed, resulting in the order of a new trial.
Because his close association with the Innocence Project Mark Mahoney has often been called upon to assist in cases where prisoners seek to have access to DNA testing, and other relief, in an effort to establish their innocence. While we have successfully gotten relief for a number of these prisoners just by a motion to the trial court, we have also succeeded on appeals in securing the DNA relief that we have sought. People v. William Hayes, 284 A.D.2d 1008 (4th Dept. 2001) (affirming 440 motion for DNA testing) leave to appeal denied, 97 N.Y.2d 641(2001)
Health Care Fraud
Harrington & Mahoney has substantial experience in Health Care Fraud investigations and prosecutoins. In one recent case, an indictment containing 64 counts of Health Care Fraud charges, under 18 USC § 1347, was dismissed against an orthopedic surgeon represented by Harrington & Mahoney pursuant to a deferred prosecuting agreement more than two years after the indictment. Mr. Mahoney brought extensive challenges to the search of the doctor's offices, and to the nature of the investigation leading to the arrest, on claims of vindictive prosecution, facial insufficiency of the accusation, estoppel, the interests of justice, and a groundbreaking claim of lack of jurisdiction. The motion to dismiss was at first granted by the federal Magistrate Judge, but then overturned by the district court. Nevertheless, after extensive negotiations with the government, the charges were settled with a "pretrial diversion" agreement which results in dismissal of all the charges, with the payment of a settlement amount, with no adverse consequences for he physician with respect to his medical license or his ability to participate in federal payor programs.