The Work

August 4, 2011 4:28 PM

Skadden Up Against NYPD in Search for Missing Boy

Posted by Sara Randazzo

Correction: 8/4/11, 4:50 p.m. ETD. The original version of this story referred incorrectly to U.S. district court judge John Gleeson's status on the federal bench and the title of Skadden of counsel Jonathan Lerner. That information has been corrected in the second paragraph below. We regret the errors.

Skadden, Arps, Slate, Meagher & Flom attorneys involved in an unusual pro bono case--trying to find a boy who went missing from a Brooklyn foster home in early 2010--are butting heads with the New York City Police Department over their desire to review case files documenting the investigation into the child's disappearance.

Jonathan Lerner, of counsel in Skadden's New York office, agreed to represent Patrick Alford pro bono on June 6 after being asked to do so by U.S. district court judge John Gleeson. Alford was 7 years old and a ward of New York City's foster care system when he vanished on January 22, 2010, while taking out the trash from the Brooklyn apartment where he lived at the time.

In the wake of Alford's disappearance, his mother and father filed separate lawsuits in Brooklyn federal court against the City of New York, the city's child welfare agency, private childcare agency St. Vincent's Services, and the boy's foster mother, alleging that violations of the boy's constitutional rights committed by the defendants were to blame. After determining that neither parent was fit to represent Alford's interests, Gleeson tapped Lerner to act as the boy's independent counsel.

Since joining the case, Lerner has battled the NYPD over access to the department's files on the Alford investigation. He first asked the court to intervene in the dispute in a July 5 letter that detailed the department's reluctance to make the records available and emphasized why he felt "it would be futile to commence our own attempt to locate [Alford] without learning what actions had been undertaken."

Attorneys for the city responded with a letter of their own, saying outside involvement in the case "would interfere with and thus jeopardize the ongoing investigation."

The parties continued their arguments at a court hearing Tuesday that ended with Chief U.S. Magistrate Judge Steven Gold denying Skadden's request to review the case files, according to the New York Daily News reports. (The police, the Daily News reports, have so far interviewed more than 14,000 people and scrutinized 81 surveillance videos in their search for the missing boy.)

At the hearing, Lerner says, Gold expressed an unwillingness to let the Skadden lawyers--associates Robert Fumerton, Thomas Haley, and Patrick Rideout are assisting Lerner--and the private investigator working for them, former FBI agent and onetime state inspector general Joseph Spinelli, see the case files absent an amended complaint laying out why that's necessary. Lerner expects to file that complaint Friday.

"It doesn't make a lot of sense to start a new investigation from something that happened 18 months ago," says Lerner, who questions whether police are even pursuing new leads. "Our case," he says, "is getting colder."

The New York Times reports that Alford is the only child under the age of 10 to go missing in New York during the past two calendar years who has not yet been found. The Times reports that as of July, missing person cases in the city numbered 5,790, including 3,480 involving children between the ages of 10 and 17. On average each year, New York clears 90 percent of its missing person files.

In court papers, Lerner has suggested there may be bias at work in how the police department is handling the Alford case. "It is hard to believe the City would stubbornly deny this missing child the advantage of having a highly professional private investigation firm join the effort to locate him if he were from a more privileged and influential background," he writes.

The NYPD did not immediately respond to a request for comment.

Lerner says he expects to spend a substantial amount of time on the Alford case and that Skadden, which ranked number 11 on The American Lawyer's Pro Bono Scorecard this year, is treating it like any other client matter.

"Of all the things we could accomplish, if we could help locate him, that would be highest and best result," Lerner says. "We are going to apply whatever resources are necessary to try to move forward."

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