Members of Mayer Brown’s Supreme Court and Appellate practice helped shape a major victory for a civil rights plaintiff who argued that his plea bargain to resolve a criminal matter on appeal should not preclude a later-filed civil rights action.

In Poventud v. City of New York, et al, the plaintiff, Marcos Poventud, was convicted of attempted murder in the second degree and several related crimes. The 1998 conviction hinged on the shooting victim’s identification of Poventud. However, there were problems with the identification that were not disclosed.

During the investigation, the victim had first identified Poventud’s brother, who was incarcerated at the time of the crime. Then, after police showed the victim photo arrays four more times—each time including Poventud’s photo—the victim named Poventud as the shooter and later picked him out of a lineup.

Neither Poventud nor his codefendant, Robert Maldonado, were made aware of the erroneous identification. Both men were convicted and appealed. Poventud’s conviction was upheld while Maldonado’s was reversed.

During Maldonado’s retrial, evidence about the misidentification was disclosed. Maldonado was acquitted. In 2005, Poventud’s conviction was vacated, but the Attorney General indicated a desire to appeal. Poventud entered into a plea agreement and pled guilty to attempted robbery in the third degree and was released from prison for time served.

In May 2007, Poventud brought a civil rights action arguing that his 1998 conviction violated his constitutional rights to due process. The defendants argued that because Poventud pled guilty, he was barred from bringing the claim. The district court agreed and so did a split Second Circuit panel.

In an en banc review, and on behalf of the National and New York Associations of Criminal Defense Lawyers, Mayer Brown argued that the case should be decided on narrow grounds that preserved the plaintiff’s right to seek monetary compensation for certain constitutional violations committed by the New York City police. In a divided 9-6 decision, the court adopted the narrow argument, avoiding broader questions that had preoccupied the original three-judge panel. The team included special counsel Charles Rothfeld, associate Michael Kimberly, who argued the appeal, and associate Paul Hughes.