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By Matthew Russell Lee

SDNY COURTHOUSE, August 12 -- Just before the narcotics conspiracy trial US v. Ernest Murphy began jury selection on Monday, August 12 in the U.S. District Court for the Southern District of New York, Circuit Judge Richard J. Sullivan harshly admonished the SDNY US Attorney's Office for "abject violation of a court order."

As a remedy, rather than the adjournment requested in writing by both sides over the weekend, Judge Sullivan precluded use at the trial of hours of videos and jailhouse telephone calls. It makes the conviction of Murphy less likely; his lawyers switched their request for adjournment to preclusion. How will the US Attorney's Office answer for this? Inner City Press has asked that Office, for access to all exhibits and explanation of sealed proceedings.

 On Sunday night before the trial scheduled for Monday morning, Murphy's lawyers Patrick Joyce and Robert Moore wrote to Judge Sullivan "to alert the Court that tomorrow morning we also intend to discuss [that] the late evening of August 10, 2019, the Government provided additional 3500 material to defense counsel via USAfx consisting of 70 phone calls made by the Cooperating Witness while in custody in this case."

  Some evidence is being excluded; on other of the calls, defense counsel will be allowed to recall to the stand for cross examination government witness after having next weekend to review the 3500 material. The case is US v. Ernest Murphy, 18-cr-373 (Sullivan).

 Also, the US Attorney's Office referred to "lab reports (primarily for reanalysis)—all but one of which we received on Friday and Saturday. We received lab report #5 corresponding to voucher 3000912001 (crack seized from Decatur) on August 1 and apologize for not sending that one along sooner."

  Before Judge Sullivan on August 12, apology was not enough. He called it an "abject violation of a court order." But how will it impact the trial? Inner City Press has been covering this and other proceedings before Judge Sullivan, except one which the parties are trying to seal. Watch this site.

The government has argued that during the trial, whenever it now begins, the defense should not be allowed to question NYPD witnesses about, among other things, shooting and killing an armed motorist, and the City settling a ranged of cases against them for amounts like $40,000 and $15,000 and at least two substantiated cases before the Civilian Complaint Review Board.

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.

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

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