July 17, 2020

Milbank Team Wins Reversal of Conviction for Client in Case Spotlighting Police Misconduct


A Milbank LLP team persuaded the First Department to unanimously overturn the conviction of a client who had been barred at trial from cross-examining his arresting officer about his history of misconduct and false arrest.

Associate Emily Scarisbrick delivered oral argument to the court virtually. The Milbank team also included Chairman Scott Edelman and associate Alison Bonelli.

The client was arrested for allegedly stealing a purse from an intoxicated woman in the midst of a crowded street. The client approached the woman to offer aid but was later accused of theft. The arresting officer claimed he witnessed the incident and asserted that a video recording of the event documented the client’s theft conclusively.

The recording, played at the client’s jury trial, was blurry and filmed at such a distance that the victim was barely visible. As a result, the witnessing officer’s testimony became key evidence in the trial. At trial, the judge prevented our client’s lawyer from asking the police officer whether he had ever committed false arrests in the past, even though the police officer had recently been sued for civil rights violations including false arrest. Our client was convicted of grand larceny based on the officer’s testimony and the court sentenced him to two years in prison. The purse our client had allegedly stolen contained lip gloss and a few business cards. Our client maintained that he had only been trying to help the woman.

The Milbank team argued that our client’s lawyer should have been allowed to cross-examine the officer on his history of misconduct as a test of his credibility, and that the jury should have been allowed to hear how the officer responded to those questions. The court, agreeing with Milbank, ruled that the trial court erred when it precluded cross-examination of the officer about his prior misconduct and unanimously reversed our client’s conviction given the absence of other convincing evidence of his guilt. ​​​​​​​

Discussing the case, Ms. Scarisbrick noted, “This case was challenging because the government claimed to have conclusive video evidence of the events in question, which would make any judge reluctant to overturn a conviction. Even though oral argument was not required, we thought it was essential to advocate for our client directly to the judges and point out the problems with the video evidence and the total absence of other compelling evidence against our client.”

Ms. Scarisbrick added, “For this appeal, we were able to tap into partners’ experience with prosecuting criminal cases to expose weakness in the government’s case. The chance to argue in the First Department as a junior associate is a privilege, and to know that this work impacts my client’s life is extremely rewarding.”