Foes of Trump Court Nominee Cite Old Views on Rape

Neomi Rao, President Trump’s nominee to replace Brett Kavanaugh on the U.S. Court of Appeals for the D.C. Circuit, is facing scrutiny for her collegiate writings about sexual assault. Rao leads the Office of Information and Regulatory Affairs. The White Housse says her views as a college student were “intentionally provocative.”

Neomi Rao, President Trump’s nominee to replace Brett Kavanaugh on the U.S. Court of Appeals for the D.C. Circuit, is facing scrutiny for her collegiate writings about sexual assault, environmental protections and multiculturalism, NPR reports. Rao leads the Office of Information and Regulatory Affairs, a position described as the Trump administration’s “deregulatory czar.” As a Yale undergraduate, she staked out political positions that have drawn criticism for being too far outside the mainstream for someone to sit on a federal appeals court. Rao is scheduled to appear before the Senate Judiciary Committee on Tuesday for her confirmation hearing. At Yale, Rao wrote that women who are raped can share the blame if they are intoxicated while it occurs.

Justice Department spokeswoman Kerri Kupec said the “The views she expressed a quarter-century ago as a college student writing for her student newspaper were intentionally provocative, designed to raise questions and push back against liberal elitism that dominated her campus at the time” The White House’s selections for appellate judgeships have mostly been white men. Rao, the daughter of Indian immigrants who clerked for Supreme Court Justice Clarence Thomas, would become the first South Asian woman to sit on the D.C. circuit court. Opponents say Rao does not deserve the seat. “As South Asians, we believe in the importance of a diverse judiciary, but Rao’s record is deeply alarming to us,” said Deepa Iyer, an author who is organizing opposition to the nominee. Opponents rejected the idea that her statements at Yale should be relegated to the past. “The bottom line is Rao’s views have not matured,” said Daniel Goldberg of the Alliance for Justice. “She has not evolved. She is the same person who wrote harsh, narrow-minded things in her 20s.”

from https://thecrimereport.org

PACER Foes Pile On in Appeal of District Court Ruling

The federal courts’ electronic-access system generates a surplus in the millions. Public-interest groups hope an appeal goes further than a trial judge did in tearing down that fee system.

A trial court’s split decision in a case challenging the federal courts’ use of their PACER system as an overpriced font of slush funds has drawn a number of friend-of-court briefs from public-interest groups asking the Federal Circuit Court of Appeals to go further to rein PACER in, The New Republic reports. The decades-old Public Access to Court Electronic Records system, charging users 10 cents per page, brought in more than $146 million in fees during the 2016 fiscal year, even though it cost just over $3 million to operate. That has made it a target for groups alleging the fee structure violates federal law and serves as a barrier to judicial transparency and openness.

The E-Government Act of 2002 authorizes the judiciary to levy fees “only to the extent necessary” to provide “access to information available through automatic data processing equipment.” The plaintiffs — the National Veterans Legal Services Program, the National Consumer Law Center, and Alliance for Justice— want the fees limited to PACER’s direct upkeep. The government countered that the law provides much more flexibility than that. Last March, federal judge Ellen Segal Huvelle effectively split the difference, ruling out only certain federal uses of PACER surpluses. The Federal Circuit has yet to schedule a date for oral arguments in the case. If the plaintiffs prevail, PACER users between 2010 and 2016 may see some of their expenses refunded by the federal government.

from https://thecrimereport.org

Post-Shutdown Court Dockets Strained, Mostly on Civil Side

With money now available to keep the government open through at least Feb. 15, judges have started to lift the stays they issued when cases involving the Department of Justice ground to a halt. But civil cases don’t immediately pick up where they left off. 

Federal courts across the country are playing catch-up after the partial federal government shutdown, with the harshest effects hitting the civil docket rather than criminal cases, The Hill reports. Without money to pay its attorneys during the 35-day funding lapse, the Department of Justice successfully convinced judges to put a number of cases on hold or push back filing deadlines, including several high-profile challenges of Trump administration policies.

With money now available to keep the government open through at least Feb. 15, judges have started to lift the stays they issued. But, much like the immigration court backlog, civil cases don’t immediately pick up where they left off. During the shutdown, it was largely up to individual judges to decide whether to hit pause on certain proceedings. Federal courts remained open by using money collected in court fees, but all hiring, non-case-related travel and training was halted in an effort to save money.

from https://thecrimereport.org

Driving While Poor: How Unpaid Traffic Fines Land Some Motorists in Jail

Virginia legislators may soon end a policy of suspending driver’s licenses for non-payment of fines that critics say amounts to a penalty for being poor. Low-income motorists who need their cars to get to work—and to earn the money to pay their traffic debts— can face jail if they’re caught driving illegally.

More than half a million Virginians have had their licenses suspended because they could not afford to pay accumulating court fines and fees, for something as small as a parking violation, under a Virginia Department of Motor Vehicles (DMV) policy.

In what some critics say amounts to a double penalty for being poor, many of them risk jail terms when they try to earn money to pay back their debts—by driving without a license.

A push to roll back the policy by the state’s General Assembly, which returned to session this month, is gaining ground. At the same time, a lawsuit challenging the policy as unconstitutional is moving through the courts.

Last month, a federal judge in Charlottesville, Va., granted a preliminary injunction to stop the DMV from enforcing the policy, but only against the five plaintiffs involved in the suit.

The issue is not confined to Virginia. According to a report last year in the Washington Post, more than seven million U.S. residents may have had their driver’s licenses suspended for failure to pay court or administrative debt.

Virginia Gov. Ralph Northam condemned the suspensions in his address to the state legislature earlier this month.

“We shouldn’t be punishing people for being poor,” he said.

Advocates for change say poor people bear the biggest costs of the policy.

“In court […] I see all of the time people [who] are at or below the poverty level get a traffic ticket and their license is suspended if they miss one payment,” said State Senator Bill Stanley, a Republican who is also a lawyer in Franklin County.

“They’re not given notice. They’re not brought back to court,” added Stanley who has sponsored a bill to end the practice. “(The license is) just suspended.”

According to the DMV, about half of the 1,301,548 Virginians who have suspended driver’s licenses fall under the category of motorists who either can’t pay, or refuse to pay, their court fines and fees.

Critics say this is jamming up the court system and ruining lives.

“A driver’s license isn’t just a convenience, it’s a necessity,” said Amy Woolard, policy coordinator for Legal Aid Justice Center, which represents low-income Virginians.

“We have very few areas of the state with reliable public transportation that can really meet all of people’s needs.”

Woolard said those clients who need to drive in order to get to work risk 10-day jail sentences if they are caught driving with a suspended license.

She said that amounts to punishing people for not being able to pay their debts—confining them “in essence (to) a debtors’ prison.”

In a recent visit to the Chesterfield County Jail women’s unit, several inmates recounted the vicious cycle of debt that landed them behind bars.

“They expected me pay these fines or (my license) is going to be suspended again,” said inmate Tessa Pierotti. “But I can’t get to work (to earn money to pay the fines) because I can’t drive.”

Pierotti finally got her license back after agreeing to a payment plan—but when she missed one payment, the license was suspended again.

Some inmates said they owe as much as $25,000 in unpaid fines.

Revenue for the Courts

While the bill has bipartisan support in the General Assembly, not everyone thinks it’s a good idea.

Timothy Martin, Commonwealth Attorney in Augusta, Va., said suspending licenses is the only way to force people to pay fines and fees, which help pay for day-to-day court operations.

“The people who have committed the offenses won’t pay anymore and the end result will be that it will shift the burden to the taxpayer,” he said.

But Jacob Fish, with the libertarian advocacy group Americans for Prosperity, said the purpose of fines and fees shouldn’t be to generate revenue.

“This is a practice that hurts individuals,” Fish said. “It prevents them from being able to work. It prevents them from being able to reenter society.

The revenue earned from the fines, he said, is “outweighed” by giving scofflaw drivers a chance to repay without facing further legal action so they can again become “functioning members” of society.

This is an edited and condensed version of a report by Whittney Evans, a public radio reporter for WCVE News of Richmond, and a John Jay Rural Justice Reporting Fellow. To see the full story and listen to her broadcast report, please click here.

from https://thecrimereport.org

Should Courts in High-Profile Trials Rethink ‘Anonymous Juries’?

Anonymous juries are increasingly empaneled in high-wattage trials like the federal prosecution of Mexican drug lord El Chapo, or for trials of police officers charged in killings of unarmed civilians. But a Cornell University study argues they do not always serve the interests of justice.

Concealing the identity of jurors may sometimes be required to protect their safety, but anonymous juries are not always the best guarantee that justice will be served, according to a paper published in the Cornell Law Review.

So-called “anonymous jury trials” have been increasingly empaneled since their inception in 1977 for high-profile trials involving terrorism, police killings and organized crime—most recently in the current Brooklyn, N.Y., federal trial of reputed Mexican crime kingpin El Chapo where, in addition to high security protection, jurors’ names have been concealed to ensure their safety.

But according to Leonardo Mangat, a professor at Cornell University Law School, they often have “unintended” impacts on trial outcomes—and judges should weigh carefully decisions about whether and when to grant jurors anonymity.

Mangat noted that the Sixth Amendment guarantees a public trial by a jury of heir peers to criminal defendants, but there are currently no legal precedents for using it to support a defendant’s right to have the identities of jurors made public.

“Although the Supreme Court has yet to directly address anonymous juries, courts should be exceedingly mindful about the risk [to] the defendant’s presumption of innocence,” Mangat wrote.

Meanwhile, even in cases where there are legitimate reasons for juror anonymity, juries should be required to provide an explanation for their final decisions, wrote Mangat. Such “reasoned verdicts” can ensure that the verdicts of anonymous juries are fully understood by the community, he added.

The increased use of anonymous juries raises ethical questions.

Among the concerns of using anonymous jurors are the impact on the presumption of innocence, the public’s right to an open trial, and the loss of “civic engagement,” under which a defendant is judged transparently and openly by a jury of his or her peers, Mangat wrote.

He added there are also concerns about the impact of anonymity on jury verdicts.

Citing a “mock jury experiment” which found that anonymous jurors returned approximately 15 percent more guilty verdicts than their non-anonymous counterparts.

According to Mangat, jury trials are crucial to the values embedded in the U.S. constitution—and also to the public confidence in a fair trial.

Juries “infuse a trial with community values,” he wrote, adding that “they signal legitimacy toward society, and their judgments prompt civic and political debate.”

However, juror anonymity can disrupt those values, Mangat cautioned.

Mangat says his research findings suggest that anonymous juries have more of an impact than traditionally thought.

In addition to employing “reasoned verdicts,” Mangat advises courts to adopt the Seventh Circuit’s test of deciding the level of anonymity required for the specific circumstances of a case.

The Seventh Circuit distinguishes between the need to empanel an anonymous jury, where it is deemed necessary that the defendant knows nothing about the jurors, and a “confidential” jury, where the court finds that the public should not know who the jurors are.

He noted that recently judges have allowed anonymous juries in cases where police officers are on trial for the deaths of civilians, on the grounds that the high-profile nature of these cases requires that jurors be protected from any possible backlash from their decisions.

But applying the Seventh Circuit test would result in a very different decision, Mangat wrote.

“The court would….likely find that an anonymous jury is not warranted because the likelihood of juror harm and resultant harm to the judicial process from the defendant is absent,” he concluded.

Prof. Mangat’s paper can be downloaded here.

Lauren Sonnenberg, a TCR news intern, contributed to this summary. Readers’ comments are welcome.

from https://thecrimereport.org

Man Cleared of Mother’s Killing After Serving 19 Years

The judge ruled after lawyers for the Innocence Project and the Bronx district attorney’s office brought forward new evidence that suggested someone else killed her, and that detectives had used psychologically coercive interrogation techniques to get a false confession.

On Thursday, a state judge in the Bronx finally believed  46-year old Huwe Burton’s claim that his confession of killing his mother when he was 16 was coerced and vacated his conviction, The New York Times reports. Burton spent 19 years in prison.

The judge, Steven L. Barrett, ruled after lawyers for the Innocence Project and the Bronx district attorney’s office brought forward new evidence that suggested someone else killed Ms. Burton, and that detectives had used psychologically coercive interrogation techniques to get Mr. Burton to give a false confession.  Justice Barrett said he had presided over another homicide case in 1988 in which the same detectives who had elicited a false confession from Mr. Burton had coerced phony statements from two men, who implicated a third man in the murder. It later came out the third man was in jail at the time of the killing and could not have been involved.

from https://thecrimereport.org

Federal Court Cases Face Delays Due to Shutdown

As judges have pressed pause on cases, major parts of the Trump agenda have been thrown into limbo. The federal court system will have exhausted stopgap attempts to stay open as of Feb. 1, according to the U.S. Courts Administrative Office.

The lingering government shutdown means justice, in many cases, is grinding to a halt, Politico reports. Fewer than half of the staff members in the Civil Division of the Department of Justice are considered “essential,” erasing the division’s presence from dozens of cases nationwide.

Judges have pressed pause on cases, and the freeze has already put major parts of the Trump agenda into limbo as government lawyers are no longer available to argue their legality.

The federal court system will have exhausted stopgap attempts to stay open as of Feb. 1, the Administrative Office of the U.S. Courts said this week.

“Should funding run out before Congress enacts a new continuing resolution or full-year funding, the Judiciary would operate under the terms of the Anti-Deficiency Act, which permits mission critical work,” the office said.

 

from https://thecrimereport.org

Judges Must Release Jurors’ Addresses, Court Rules

WBUR radio in Boston challenged the practice of some federal judges who release just the name and hometowns of jurors, which meant that news reporters found it impossible to locate jurors.

Judges must release the names and street addresses of jurors in a timely manner at the end of trials, the U.S. Court of Appeals for the First Circuit ruled, reports WBUR radio. The decision allows trial judges to refrain from releasing jurors’ addresses in special circumstances. WBUR went to court to challenge the practice of some federal judges who released just the names and hometowns of jurors. The denial of street addresses meant locating some jurors was impossible.

WBUR sought the ruling in a criminal case against New England Compounding Center pharmacist Glenn Chin, who was tried on charges of mail fraud, corruption and second degree murder in the case of medications that caused a fatal meningitis outbreak. he judge ruled that in the internet age, release of jurors’ addresses was an invasion of privacy and could expose jurors to danger. Attorney Jeffrey Pyle, who represented WBUR, said, “The court’s decision reminds us that unfocused fears about the internet are no reason to reduce accountability and transparency in our system of justice.” WBUR and other news organizations use the addresses to locate jurors, but do not publish the addresses.

from https://thecrimereport.org

El Chapo’s Encryption Defeated by Turning His IT Consultant

Impressive police work: In a daring move that placed his life in danger, the I.T. consultant eventually gave the F.B.I. his system’s secret encryption keys in 2011 after he had moved the network’s servers from Canada to the Netherlands during what he told the cartel’s leaders was a routine upgrade. A Dutch article says that it’s a BlackBerry system. El…

Impressive police work:

In a daring move that placed his life in danger, the I.T. consultant eventually gave the F.B.I. his system's secret encryption keys in 2011 after he had moved the network's servers from Canada to the Netherlands during what he told the cartel's leaders was a routine upgrade.

A Dutch article says that it's a BlackBerry system.

El Chapo had his IT person install "...spyware called FlexiSPY on the 'special phones' he had given to his wife, Emma Coronel Aispuro, as well as to two of his lovers, including one who was a former Mexican lawmaker." That same software was used by the FBI when his IT person turned over the keys. Yet again we learn the lesson that a backdoor can be used against you.

And it doesn't have to be with the IT person's permission. A good intelligence agency can use the IT person's authorizations without his knowledge or consent. This is why the NSA hunts sysadmins.

Slashdot thread. Hacker News thread. Boing Boing post.

from https://www.schneier.com/blog/

TX Court Stops Execution Over Bite Mark Evidence

Blaine Milam, who was convicted of killing a 13-month-old girl in a brutally botched exorcism, was granted a last-minute stay Monday over concerns about the bite mark evidence used to convict him and the possibility he might be too intellectually disabled to execute. It would have been Texas’ first execution of 2019.

Blaine Milam, the East Texas man convicted of killing a 13-month-old in a brutally botched exorcism, was granted a last-minute stay Monday over concerns about the bite mark evidence used to convict him and the possibility he might be too intellectually disabled to execute, the Houston Chronicle reports.

Milam, 29, who was scheduled to die Tuesday, would have been Texas’ first execution of 2019. Defense attorney Jennae Swiergula argued that the conviction rested on “junk science.” Milam was sent to death row for killing Amora Bain Carson, whose body was found in his trailer, covered in bites and bruises.

The trial was moved more than two hours away after intense media coverage of the sordid allegations including everything from drugs to demonic possession.

In a late appeal, Milam’s lawyers argued against the state’s reliance on bite-mark testimony, which was a key part of his trial, reports the Texas Tribune. His lawyers also claimed he was intellectually disabled and therefore ineligible for execution.

In December 2008, Milam called 911 and police in Rusk County arrived to find the body of Amora Carson, according to court opinions. The medical examiner counted 24 human bite marks on the baby’s body and found evidence of blunt force trauma and sexual assault.

Milam told investigators he had no idea what had happened, and that he and his girlfriend had returned home to find the child dead. In the end, he was sentenced to death and the child’s mother – Jessica Carson – was given a life without parole sentence.

The mother first thought Milam was possessed by the devil. Then, the couple decided that baby Amora was possessed instead. In 2008, they beat the child with a hammer, bit her and sexually assaulted her in an attempt to cast out the demon.

Carson later admitted to the Texas Rangers that her daughter had died during the ill-fated exorcism.

In appeals, Milam alleged that the state withheld exculpatory evidence at trial, that he was denied the right to present a defense, that he was intellectually disabled under the current definition and that the bite mark evidence underlying his conviction isn’t reliable science.

Last month, the Court of Criminal Appeals ruled in another case that the conviction had relied heavily on testimony regarding bite mark science no longer considered reliable.

Despite the court’s decision, Texas is still set to host the nation’s first execution of the year. Robert Jennings is scheduled to die on Jan. 30, according to the Texas Department of Criminal Justice. Five other executions are scheduled in the state through May.

See Also: Forensic Science Reform at ‘Crossroads’

from https://thecrimereport.org