Joel Berger

Of Counsel

Joel Berger has been a civil rights and criminal defense lawyer for nearly 45 years, representing the underprivileged in unpopular cases. He has argued and won cases in the Supreme Court of the United States, nearly half the U. S. Courts of Appeals, and the New York State Court of Appeals, as well as trying numerous complex matters in the lower courts. In 1996 he entered private practice, concentrating on civil rights cases.

Mr. Berger graduated from Columbia College in 1965 and the University of Chicago Law School in 1968. In 1972, at age 28, he won his first United States Supreme Court case, reversing a Brooklyn murder conviction. DeMino v. New York, 404 U.S. 1035 (1972). That year he also founded the Legal Aid Society’s Prisoners’ Rights Project and tried the class action that led to the closing of the notorious “Tombs” jail in lower Manhattan by a U.S. District Judge and the U.S. Court of Appeals for the Second Circuit. He later obtained injunctions against the City’s other jails, outlawing over- crowding and other unsafe and unsanitary conditions.

Shortly after the Supreme Court reinstated capital punishment in 1976, Mr. Berger joined the staff of the NAACP Legal Defense and Educational Fund, Inc., and became one of its specialists in the defense of death row prisoners. He argued and won a case in the U.S. Supreme Court (Estelle v. Smith, 451 U.S. 454 (1981)), and nine in the U.S. Courts of Appeals (including two en banc), that reversed the death sentences of more than 200 individuals. Some of these death-sentenced prisoners were later exonerated, including one whose case was depicted in the acclaimed documentary film “The Thin Blue Line,” whom he helped represent in the U.S. Supreme Court. He also represented clients against the Reagan Administration in civil rights cases concerning integration of higher educational institutions and enforcement of the federal Voting Rights Act. And he continued to represent prisoners in class actions, including a case against the notorious Texas prison system.

Since entering private practice Mr. Berger has won more than $9 million from the City of New York to date in cases alleging false arrest, malicious prosecution, excessive force, and sexual harassment by police officers. He also obtained one of the largest sanctions awards ever assessed against the City and defeated a subsequent effort by the City to disqualify him from representing clients in police cases. Robbins v. City of New York, 98 Civ. 5331 (Rakoff, J.) (SDNY 1999). Another retaliatory effort by the Giuliani Administration, seeking to remove him from an adjunct teaching position at the New York University School of Law, was also unsuccessful. See New York Times, January 22, 2008, p. A16 (with photo). Other prominent cases in recent years have included a federal civil rights action on behalf of a former New York State inmate convicted on the basis of police perjury, settled for $650,000; a sexual harassment case on behalf of three female New York City police officers, also settled for $650,000; a wrongful death action alleging that a woman inmate on Rikers Island had died due to inadequate medical care and inattention by correction officers, settled for $400,000; two actions by families whose homes were invaded by police SWAT teams in illegal searches, each settled for $200,000; an action by an elderly woman confined to a wheelchair, falsely arrested for assaulting her landlord, settled for $180,000; and an action by a diabetic woman arrested for smoking a marijuana cigarette who was denied medical attention by the police when her sugar count reached life-threatening levels, settled for $125,000.

Mr. Berger also argued and won an important case in the New York State Court of Appeals expanding the ability of persons exonerated of crimes to win compensation under the State’s Unjust Conviction Law (Court of Claims Act § 8-b). Long v. State of New York, 7 NY3d 269, 819 NYS2d 679 (2006). The decision reversed several rulings of the Appellate Division, Second Department, that for many years had limited the ability of exonerated individuals to collect damages. As a result of that decision, Mr. Berger obtained settlements totaling $950,000 for Mr. Long for the time he had spent in State Prison. $900,000 came from a legal malpractice action against prominent lawyers who had initially mishandled Mr. Long’s case in the Court of Claims.

Mr. Berger has also been a high-ranking government official. From 1988-96 he served as an executive in New York City’s Law Department (the office of the Corporation Counsel). He served under three Mayors and four Corporation Counsels. In the Dinkins Administration he was assigned the task of monitoring cases of police and prosecutorial misconduct, to identify those cases in which the City should refuse to represent police officers and prosecutors because they had in fact engaged in misconduct, including cases in which they ignored evidence that tended to exonerate convicted individuals. This role led to his determination to devote a significant portion of his private practice to this field. He was also the Dinkins Administration’s leading lawyer in numerous high-profile cases on behalf of the City of New York. He represented the City in U.S. Justice Department proceedings and litigation related to the City Charter revision that abolished the “Board of Estimate,” increased the power of the City Council, and approved a redistricting that substantially increased Latino and African American representation on the Council, successfully defending the redistricting before New York’s highest court in Brooklyn Heights Association v. Macchiarola, 82 N.Y.2d 101 (1993). Other examples include the City’s challenge to Staten Island’s unsuccessful effort to secede, proceedings concerning community school board elections and federal Voting Rights Act Spanish and Asian language ballot requirements, and defense of an environmental action in which the City agreed to numerous to reforms at the Fresh Kills Landfill before its eventual closure. He also represented the City in class action lawsuits concerning operation of the foster care system and procedures for evaluating and educating handicapped children.

Mr. Berger’s general litigation matters in private practice have included a lawsuit on behalf of a prominent private hospital against the NYC Health and Hospitals Corporation (settled for a half- million dollars), a civil RICO action on behalf of a major publishing corporation, an appeal to compel arbitration of a dispute over computer software royalties, litigation over the profits of a defunct partnership, defense of a state’s suspension of a prominent trainer of thoroughbred racehorses, defense of a real estate firm in a proceeding before the Equal Employment Opportunity Commission, defense of community colleges in employment discrimination and personal injury actions, and representation of a physician in investigations by the State Office of Professional Medical Conduct and the Manhattan DA’s Office. He continues to represent corporate clients and institutions in addition to individuals alleging government misconduct.

In addition to practicing law, Mr. Berger serves on the Committee on Civil Litigation of the United States District Court for the Eastern District of New York, appointed by the Chief Judge. For 10 years he taught public-sector litigation as an Adjunct Clinical Professor at the New York University (NYU) School of Law, and he has served as Chair of the Committee on Government Ethics of the Association of the Bar of the City of New York. He is presently a member of the Civil Rights Panel of the Association’s Legal Referral Service and serves on the Association’s committee that administers the Legal Referral Service. For many years he was also a member of the Board of Directors of Citizens’ Union. He is the author of several articles, including two Op Ed columns in the New York Times and one in the Wall Street Journal about police misconduct. He has also spoken at many law school forums and continuing education programs for lawyers, both in New York City and nationally, and is a frequent guest on television and radio programs.


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