Two Attorneys Accused In Molotov Cocktail Attacks Are Back In Jail

We have been discussing the case of attorneys Colinford Mattis and Urooj Rahman, who are accused of throwing a Molotov cocktail into an occupied police vehicle in New York. The case could prove an early opportunity for the Trump Administration to reframe prosecutions as domestic terrorism. Earlier, some of us were surprised that U.S. District Judge Margo Brodie upheld the $250,000 bail determination of U.S. Magistrate Judge Steven Gold. Prosecutors presented evidence that they two attorneys were trying to distribute Molotov cocktails and suggested that Mattis did not appear rational. Now, the United States Court of Appeals for the Second Circuit has reversed Judge Brodie and the two attorneys are back in jail.

Both attorneys were bailed out. Rahman’s bail was paid for by friend and fellow attorney Salmah Rizvi, who served in the Defense Department and State Department during the Obama administration. She will now receive back her bail money.

The decision came quickly after a brief hearing held Friday morning. However, the Second Circuit also set an expedited schedule for a full appeal. Even for an interim order, it is relatively rare to have bail decisions reversed since they are imbued with factual determinations of the lower court,

The two attorneys reportedly have clean records, which works to their obvious benefit. The problem is the nature of the alleged crime and the effort to get others to attack police. Such conduct does suggest a threat to public safety, if true. On the other hand, they can be monitored on home confinement and the risk of the coronavirus still looms large for courts.

I would be interested in seeing the report of the pretrial service officer’s report on the attorneys. These reports are given great weight by the courts. However, 18 U.S.C. 3142(g), lists factors for bail decisions that they include:

the nature and circumstances of the offense (in particular whether it is an offense which is violent or nonviolent in nature, or involves narcotics);

the weight of the evidence against the person;

the history and characteristics of the person —

character — (including physical and mental condition), family ties, employment, financial resources, length of time in the community, community ties, past conduct history relating to drug or alcohol abuse, criminal history, record of court appearances; and

whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and

the nature and seriousness of the danger to any person or to the community that would be posed by the person’s release.

18 U.S.C. § 3142(g).

Three of the four criteria above militate against bail. The offense is violent and the weight of the evidence is great, including the picture below. It was also done with considerable premeditation and planning if it is true that they had multiple such devices and the makings for more devices. Finally, as noted, the danger to the community is high particularly given the ongoing protests.

The key is that these individuals were the alleged direct actors, not alleged conspirators or material supporters. The continuing protests are the other major factor, where a court might be more comfortable with bail after the streets have returned to normal. Most judges tend to deny bail in such circumstances.

As a criminal defense attorney, it is probably not surprising that I tend to favor bail. The monitoring of prisoners in the federal system is a very successful program. Moreover, these defendants are entitled to presumptions of innocence and incarceration makes their work with counsel much more difficult. Having said that, the decision by Brodie runs against the grain for the courts as a whole. While there has been controversy recently over the elimination or abridgment of bail in cities like New York, that is a state and city trend. Indeed, the opposition to bail reform was growing in New York before the protests and the release of looters has resulted in outrage, including recent moves by the Manhattan District Attorney seeking court approval to hold defendants.

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