Protesters set fire to an NYPD van after a peaceful protest turned into a violent uprising. Photo: Ryland West/ ALM

Government lawyers said the judge hearing the case of two attorneys accused of throwing a Molotov cocktail at an unoccupied police vehicle during unrest in Brooklyn failed to properly weigh the presumption of detention for such charges.

That presumption was the center of prosecutors' arguments before a panel of the U.S. Court of Appeals for the Second Circuit Tuesday.

But Sabrina Shroff, who is representing suspended Pryor Cashman associate Colinford Mattis, argued that U.S. District Judge Margo Brodie of the Eastern District of New York, who previously held leadership roles in the criminal division of the Brooklyn U.S. Attorney's Office, had all the appropriate information she needed when she made her decision to release Mattis and co-defendant Urooj Rahman to home detention on $250,000 bonds.

"Neither [Rahman's attorney] nor I argued that the presumption did not apply," Shroff said. "In fact, we embraced the presumption and told her why we had met the burden of production."

The panel, which included Judges Peter Hall, Gerard Lynch and Jon Newman, appeared open to the argument that Brodie and U.S. Magistrate Judge Steven Gold had ample experience to know which offenses carry a presumption of detention.

Assistant U.S. Attorney David Kessler argued that Rahman and Mattis should remain at Brooklyn's Metropolitan Detention Center, where they have been since the Second Circuit granted prosecutors' request for an emergency stay on June 5.

Regardless of whether a judge could make an implicit finding that the presumption had been overcome, Kessler argued that Brodie did not address or refer to the presumption at all.

Bracewell partner Paul Shechtman, who is representing tenants' rights attorney Rahman, noted that Brodie's alleged failure to address the presumption was not raised by prosecutors in an objection at the district court level or as a focus of their stay motion.

"That suggests to me that this is an appellate afterthought," Shechtman said. "The issue was raised by one of the judges on the stay panel."

Shechtman described the alleged offense as an "aberrant act by two thoroughly decent young people," emphasizing that the arrests and imprisonment have been "sobering" for Mattis and Rahman alike.

He also said the materials involved in the construction of a Molotov cocktail could be acquired at a convenience store, disputing Kessler's argument that the alleged offense could not have been a crime of passion.

"I follow your point that it's aberrant in the sense that one would not expect two people who have been members of the bar for a number of years to be so caught up in the protests," Newman said, but he asked why Rahman and Mattis might not risk their careers again after doing so once.

Shechtman urged the judges to remember that Rahman and Mattis would be released on a number of conditions, including bond, home confinement and electronic monitoring.

Rahman and Mattis' case has attracted attention from across the legal community. More than 850 people currently or formerly affiliated with New York University School of Law, where Mattis is an alumnus, have signed a letter describing the charges as "politically motivated" and calling for the charges to be dropped.

This week, the National Association of Criminal Defense Lawyers filed a motion to join an amicus brief filed June 17 by a group of 56 former federal prosecutors, who wrote that the government's arguments would upend existing bail practice.

Read more:

Lawyers Accused of Throwing Molotov Cocktail in Brooklyn Protests Return to Jail as 2nd Circuit Grants Stay

2nd Circuit Weighs Whether 2 Lawyers Charged in Molotov Cocktail Attack Can Remain at Home

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