A Santa Ana-based federal judge who denied bail for convicted attorney Michael Avenatti had second thoughts Wednesday given the rising number of COVID-19 cases in New York City and asked attorneys for additional information to reconsider bail for the defendant, who is in a Manhattan jail and still faces charges in Orange County.
“In light of the evolving nature of the COVID-19 pandemic, particularly in the greater New York City area, the court invites Avenatti to apply ex parte for reconsideration” of the court’s denial of bail this past weekend, U.S. District Judge James Selna said in his order.
“The main thing he is looking for under the bail reform act is there is a catch-all that you can be released for compelling reasons,” said Avenatti’s Orange County-based attorney, Dean Steward. “The problem is the compelling reasons are medical problems for the defendant or a family member, things like that. You would think there would be good grounds for release, but there’s never been one for COVID-19.”
Steward said there is no legal precedent “that is even close” to bail amid a pandemic. There have been a couple of cases ruled on in New York recently regarding coronavirus, but those were handed down on the district level and not from an appellate court, which would establish precedence, he said.
In one of those cases bail was granted and in the other it was denied, Steward said.
Selna wants to know if there is “another compelling reason” to release Avenatti and he wants to know where the defendant would theoretically reside under a proposed house arrest, Steward said.
“It’s just like he was arrested fresh and we’re trying to make the bail arrangements,” the defense attorney said.
Avenatti has been emailing his attorneys about living conditions at the Metropolitan Correctional Center in Manhattan amid the coronavirus pandemic.
“He’s very concerned,” Steward said. “We receive a lot of email from him describing someone in his unit who has tested positive, so he’s really concerned about catching this and soon, which lends a lot of urgency to what I’m doing.”
Avenatti’s cellmate fell ill to the flu, but Steward has not been able to find out if that inmate tested positive for coronavirus.
Avenatti was convicted in New York in February of attempting to extort up to $25 million from Nike. He is due to go on trial next month in New York in a case involving allegations that he ripped off former client Stormy Daniels. Avenatti’s representation of the adult film star in a nondisclosure agreement issue with President Donald Trump catapulted the attorney to fame.
Avenatti has been in custody since January, when prosecutors in Santa Ana alleged he was engaging in a scheme to keep a step ahead of his various creditors while out on bail.
Steward has proposed placing Avenatti under house arrested in California while awaiting trial in New York and here in Orange County, where his trial is set for May 19. He said his client contracted pneumonia around Christmas while he was out of custody, but he has since recovered.
“He’s more vulnerable than everybody else for that reason,” Steward said, referring to his client’s bout of pneumonia and exposure to someone who potentially has COVID-19.
On Saturday, U.S. District Judge James V. Selna denied Avenatti’s request.
“The court is mindful of the COVID-19 pandemic,” Selna wrote. “The court accepts Avenatti’s showing that the had pneumonia about six months ago. However, there is no showing that his cellmate was infected by the virus, and there have been no reported cases of COVID-19 at the New York MCC.2 As the government points out, much of Avenatti’s criticism about the facility relate to a different facility in Brooklyn. There is no basis to release Avenatti on medical grounds.”
Steward disputed that point, explaining that the Dickensian conditions he described in his initial bail request applied to the Manhattan detention center as well as the one in Brooklyn. He said he did not believe Avenatti’s status as a convict should play a role in whether he can be released on bail.