Is Your Justice System Working? A New Tool Pries Open County-Level Data

A free data tool launched today by Measures for Justice (MFJ) is aimed at providing policymakers, practitioners and journalists with a county-level view at how criminal cases are handled from arrest to post-conviction.

A free data tool launched today by Measures for Justice (MFJ) is aimed at providing policymakers, practitioners and journalists with a county-level view at how criminal cases are handled from arrest to post-conviction.

The tool, which so far provides a portal to data from over 300 counties in six states,  represents a “treasure trove for communities that will now have access to reliable, informative and comprehensive data about their criminal justice systems,” said Amy Bach, President and Executive Director of the Rochester, NY-based Measures for Justice.

Amy Bach

“Our Portal is intended to be a starting point for conversations about how to address the multiple issues facing the criminal justice system.”

The six states covered so far are Florida, Wisconsin, Pennsylvania, Utah, North Carolina, and Washington. The project began over six years ago with funding from the Laura and John Arnold Foundation, Google and the MacArthur Foundation, among others.

The tool is available here.

MFJ says it aims to measure 20 states by 2020, with support from existing funders as well as the Chan Zuckerberg Initiative.

The portal allows users to review and compare performance data within and across states, and to break them down by race/ethnicity; sex; indigent status; age; offense type; offense severity; and attorney type.

It comprises data that has been passed through 32 performance measures developed by some of the country’s most renowned criminologists and scholars. The measures address three primary objectives of criminal justice systems: Public Safety; Fair Process; and Fiscal Responsibility.

Editor’s Note: For TCR’s interview with MFJ President Amy Bach, please click here.

The Center on Media, Crime and Justice, publisher of The Crime Report, is working with MFJ to train journalists in using the portal. Deadline for applying to the training session, scheduled June 12-13 in New York City, is today. Applications are available here.  Readers’ comments are welcome.


The Last Vestige of ‘Jim Crow’ Justice

Louisiana leads the nation in incarceration rates, with most of those imprisoned African Americans. One reason is the state’s post-Civil War practice of allowing non-unanimous jury verdicts—but some reformers are pressing for change.

Only two U.S. states still allow juries to convict defendants in non-capital cases without a unanimous decision—but Louisiana reformers are hoping to drop that number to one.

Legal reform advocates in that state have joined the local bar association in pushing legislators to require unanimous jury verdicts for most felony convictions.  A victory in their campaign will leave Oregon as the only holdout allowing non-unanimous verdicts in felony cases, except those in which the convicted person could face the death penalty.

Even though the outcome remains uncertain, the debate over non-unanimous juries in Louisiana has thrown new light on long-ignored issues relating to race and criminal justice.

The reformers, including the Louisiana branches of the American Civil Liberties Union and the Innocence Project,  argue that state lawmakers must act because the state’s courts have refused to consider changing a practice that was instituted in 1898, when the largely white legislature voted to amend the state constitution to allow 9-to-3 jury votes for felony convictions.

In the 1970s, the allowed majority was changed to 10.

Today’s critics of that constitutional amendment, including Angela Bell, a Southern University Law Center professor whose research on non-unanimous juries was published last year in the Mercer Law Review, say those white legislators mainly were aiming to re-subjugate formerly enslaved blacks., and to supply assorted white-run industries with free labor from a prison population that long has been overwhelmingly black.

“Our courts simply will not talk about it, and I have a theory as to why they won’t,” Bell, a leader of the campaign to end the practice, told The Crime Report.

“There’s a fear that if the courts went on record to say they’ve been denying people their … rights, they will create a whole class of people who will then want a remedy. They will want to have their convictions overturned … You’d open the floodgates.”

Few Louisianans, however, are aware of either the issue or the campaign, supporters of the effort contend. That’s why Bell, leaders of the state’s ACLU, the Innocence Project, The Juror Project, and other have been traipsing the state conducting public forums on the topic.

The reformers’ forums, published news op-eds and other campaign efforts come as the bi-partisan Louisiana Justice Reinvestment Task Force—Louisiana is among 34 states with similar bi-partisan initiatives—last month delivered a first draft of proposed changes aimed at reducing the state’s prison population and saving taxpayer dollars now spent on prisons.

Revamping how juries vote is critical to any meaningful criminal justice reform, these advocates say.  That would probably require a state-wide referendum on changing the constitution, but advocates believe more work on justice reinvestment is needed before such a measure could be included on a state ballot.

Reform advocates note that the jury issue is more than a mere matter of dollars and cents.

“This is such a gross violation of Fifth Amendment rights,” said Marjorie Esman, executive director of Louisiana’s ACLU. “If you’re supposed to be guilty beyond a reasonable doubt, the idea that you can be convicted when all the jurors don’t agree is preposterous.

“It violates the principles of what a free society is supposed to be.”

Ed Tarpley, a lawyer who previously was district attorney in Alexandria, La., and is part of the reform campaign, added that the reform effort is part of a movement to bring the state back in line with long-established legal traditions.

Sir William Blackstone called the jury a sacred bulwark of liberty,” he told The Crime Report. “This was such a precious thing. Unanimity is the core of it … It’s the unanimity of the jury that serves the rights of mankind.”

That Louisiana and Oregon are outliers on that front owes to racial and religious bias, author Thomas Aiello wrote in “Jim Crow’s Last Stand: Nonunanimous Criminal Jury Verdicts in Louisiana,” published in 2015.

In Louisiana, blacks were targets of non-unanimous jury proponents. In Oregon—where felony defendants can be convicted by a vote of 11-to-1—Jews were the targets, contends Aiello, a history and African American studies professor at Valdosta State University in Georgia.

In Oregon, the Office of Public Defenders has publicly voiced its opposition to non-unanimous juries. But no campaign as widespread as Louisiana’s exists in that state.

Regarding Louisiana, Prof. Bell of Southern University Law School observed, “In every audience we’ve talked to so far—lawyers, judges, the general public—most people have no idea of the racial history around this, and so many from the general public don’t even know that Louisiana even does this.”

After the Civil War, Louisiana was among southern states relying on “convict leasing,” paying state prisons for convicted persons to labor on plantations and for privately owned business.

“These plantation owners thought to themselves, ‘now that we can lease convicts, we need to get the convicts,’” Bell said.  “Things that were minor infractions became major sentences …

“That’s the scandal, systemically. All of this was born from bad intention. If you understand this law, then you understand why Louisiana is the forerunner in mass incarceration.”

William Snowden, a New Orleans public defender who founded The Juror Project, designed to create more diverse juror panels, and has written commentary opposing non-unanimous juries, said the unanimous jury advocates are trying to seize a moment when the powers-that-be in Louisiana are fixed on correcting a system that many conclude is flawed.

He, too, hopes lawmakers will offer the constitutional amendment cementing unanimous juries. Ultimately, voters must approve the change.

Rallying voter support will require raising more knowledge of what’s at stake and how the jury system works.

Katti Gray

“It’s in that jury room that most jurors learn that only 10 votes are needed,” Snowden said. “Their education needs to begin way before that. And part of that education means pointing out that non-unanimous juries are vestiges of Jim Crow.

“It means telling people, ‘This is why you should care. This is why we need your voice, even more, in the deliberation room.’”

Katti Gray is a contributing editor at The Crime Report. She welcomes your comments. Follow her @kattigray on Twitter.


Judges Taking Action Against No-Show Jurors

The average failure-to-appear rate for jurors in state courts is 9 percent nationwide, but some courts have no-show rates as high as 50 percent. The total appearing for federal jury selection has dropped annually for four years.

U.S. District Judge Michael Mosman in Portland, Or., ordered Elsie Mathews to court to tell him why she brushed off jury duty in early April. She faced a potential contempt of court citation, The Oregonian reports. The rare summons marked the court’s frustration with people who ignore the call to jury duty. This year, U.S. District Judge Anna Brown had questionnaires sent to 1,000 prospective jurors for the second trial in the takeover of the Malheur National Wildlife Refuge, but about 200 questionnaires never came back.

No-show jurors are a growing national trend and affect the function of both federal and state courts, said law Prof. Andrew Ferguson of the University of the District of Columbia, author of “Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action.” Many people look at jury duty as a burden that interferes with their work schedules or other commitments, Ferguson said. They’ve forgotten that it’s crucial to the functioning of the nation’s court system and a part of the country’s “constitutional identity” that gives them a voice in the administration of justice, he said. The average failure-to-appear rate for jurors in state courts is 9 percent nationwide, but some courts have no-show rates as high as 50 percent. The number of people who show up for federal jury selection has dropped annually since 2012, from 237,411 to 194,211 in 2016 nationwide. It’s not clear if that’s tied to fewer trials held or more people ignoring jury duty. “What we’re finding now is that judges are starting to be more aggressive on the problem,” said Jeffrey Frederick of the National Legal Research Group, a legal research firm.


Court Cites Errors In Release of Man Who Killed OH Chief

Ohio judge says court has revised its procedures after a man was released after serving less than three weeks of a 90-day jail sentence and then killed Kirkersville Police Chief Steven DiSario, a nurse and a nurse’s aid.

Hours after he allegedly choked his girlfriend several times, Thomas Hartless walked into Ohio’s Licking County Municipal Court Probation Department and was not told he had to stay away from her. It is just one of several lapses in protocol and judgment in the case of the man who shot and killed Kirkersville Police Chief Steven DiSario, nurse aide Cindy Krantz and nurse Marlina Medrano before taking his own life last week, reports the Newark (OH) Advocate. Judge Michael Higgins said new procedures have been put in place after multiple errors were made in the release of Hartless on April 11. He had served less than three weeks of a 90-day jail sentence Higgins issued on March 23.

Higgins’ review examined the case in its entirety, starting with the first charge of domestic violence filed against Hartless in December. An investigative report by probation director Kevin Saad, identified several issues with the handling of the case. Those included lack of checks and balances on the early release process, the fact that an early release recommendation fell solely on the shoulders of the interviewing probation officer, that no hearing was held on the matter and that no input was sought from Medrano, who filed the domestic violence complaints against Hartless.



Judge Orders Criminal Charge in PA Amtrak Derailment

In an unusual move, a judge ordered Philadelphia’s District Attorney to reverse course and charge Amtrak engineer Brandon Bostian with involuntary manslaughter and reckless endangerment in an 2015 Amtrak derailment that killed eight people and injured more than 200. The statute of limitations on one charge expires today,

Philadelphia’s District Attorney was ordered by a court to reverse course and charge Amtrak engineer Brandon Bostian with involuntary manslaughter and reckless endangerment in a major 2015 Amtrak derailment that killed eight people and injured more than 200, reports. To avoid a conflict of interest, the District Attorney’s Office responded that it would refer the prosecution to the state attorney general. Municipal Judge Marsha Neifield issued the order after a request from lawyers for victims of the derailment. On Tuesday, the District Attorney’s Office said there was insufficient evidence to bring charges.

The statute of limitations for charges of reckless endangerment expires today. The decision not to prosecute “was a shock,” said former prosecutor Richard Sprague. “Can you imagine someone driving … at 100 miles per hour, hitting people, killing people, and the DA saying we don’t have a basis for prosecuting anybody?” Although it is unusual for a judge to order a prosecutor to file criminal charges, there is a basis in Pennsylvania law for the judiciary to step in and essentially take control of a criminal investigation, said Temple University law Prof. Jules Epstein.



Insurance Firms ‘Corrupt’ U.S. Bail System, ACLU Says

In a special report, the ACLU says just nine insurers underwrite the majority of bonds issued in the U.S. Another report from Texas A&M University , which compares pretrial strategies in two Texas counties, says “automated risk-assessment” tools are fairer for defendants, cost less and improve public safety.

Just nine insurance companies underwrite the majority of bonds issued in the U.S., fueling a for-profit enterprise that has “corrupted” America’s judicial system, charges the American Civil Liberties Union (ACLU) in a report released today in collaboration with the  Color of Change organization, a nonprofit group which promotes racial justice.

These insurers, responsible for most of the $14 billion in bail bonds issued in the U.S. each year, “operate with little risk—even leading some of them to boast of going years without paying any losses,” said the report, entitled “Selling Off Our Freedom: How Insurance Corporations have taken over our Bail System.”

Most of the companies operate out of tax havens like the Cayman Islands and Bermuda, and “their executives operate far from the influence of the people and communities over whom they hold so much power,” the report said.

As a result, says the ACLU, “The bail industry has corrupted our constitutional freedoms for profit: the freedom from exploitation in bail, the guarantee of being recognized as innocent until proven guilty, and the guarantee of the equal application of the law to all people.”

Alternatives to money bail have increasingly drawn the attention of criminologists and local authorities.

Another report, released this spring by the Public Policy Research Institute at Texas A&M University, which  examined the effect of various bail strategies in two Texas counties, found growing support from Texas judges for an automated risk assessment tool that employs an algorithm to assign numerical risks to individual defendants, based on their previous criminal history and personal circumstances.

The report cited a 2016 survey that showed four out of five  judges in 174 Texas counties admit they make decisions on bail based on information that is often “unreliable.” More than half said they would prefer some form of automated risk assessment to guarantee court appearance and prevent future criminal activity instead of money bail

The report, ordered by the Texas Judicial Council’s Criminal Justice Committee,  compared criminal case data from the two Texas counties over a 3 ½ year period: Tarrant County, where pretrial release is dependent on financial bond; and Travis County, which uses a validated risk assessment to identify low-risk defendants without financial requirements for release.

Authors of the report concluded that the Travis County approach was not only fairer, but resulted in less cost to local authorities, with no impact on public safety

“When personal bond is automatic for low-risk individuals, financial ability is effectively removed as an obstacle to release,” the study said.  “Ten times more people are freed on non-financial terms, and fewer people remain in detention because of inability to pay a low bond.”

The report made clear that “judicial discretion” remained key to bail decisions. But it cited the results of the survey, noting that fewer than one in give judges described the defendant data now available for their consideration as “very reliable.” Moreover, most (55%) named the lack of validated risk assessment instruments as a specific obstacle to informed decision-making

The statewide survey tabulated the responses of 605 judges representing 174 of the state’s 254 counties. (Over 1,900 were sent the survey).

The survey underlined the report’s key finding that “without risk information available, the financial bail system released 12% more potentially dangerous people and detained 24% more people who could have been safely released.”

Many jurisdictions around the U.S. already use a tool called the Ohio Risk Assessment System-Pretrial Assessment Tool (ORAS-PAT),  which gathers objective information about each individual and generates a score indicating risk of flight or new criminal activity. But Travis County has introduced an automated Public Safety Assessment tool created by researchers supported by the Laura and John Arnold Foundation, which many say provides more reliable information.

While some criminologists have argued the tool has defects, the report said that it allowed Texas judges to “confidently” make more accurate custody decisions that allow for the detention of high-risk defendants and release of those who can be safely released.

The researchers said that in general, “the costs of a risk-informed pretrial release system are more than offset by savings that occur when defendants are properly classified.”

The study, entitled “Liberty and Justice: Pretrial Practices in Texas,” was prepared by  Dottie Carmichael, Ph.D.;George Naufal, Ph.D.;Steve Wood, Ph.D.;Heather Caspers, M.A.;and Miner P. Marchbanks, III, Ph.D.—all of the Public Policy Research Institute at  Texas A&M University.

The full Texas A&M report is available here.




Suicide, Aaron Hernandez and the Presumption of Innocence

The jail suicide of the former New England Patriots’ player triggered a request for vacating his murder conviction—which was under appeal when he died. That’s perfectly within the law, but does it represent justice for his victim?

In April 2015, former New England Patriot Aaron Hernandez was convicted of murder for the killing of Odin L. Lloyd and sentenced to life without parole. He appealed that conviction; Lloyd’s mother filed a wrongful death civil lawsuit against him.

Two years later and while those cases were pending, Hernandez again faced murder charges for the deaths of two men in a drive-by shooting outside a Boston nightclub. But this time, the jury acquitted him on most of the charges, although it did convict him of illegal possession of a firearm.

However, just five days after the acquittal, Hernandez was found dead in his prison cell, having committed suicide by hanging himself with a sheet.

You might think that the Lloyd family would feel some relief or sense of closure with the death of Hernandez. But due to an unusual legal rule called “abatement ab initio,” his conviction for Lloyd’s murder may be vacated because his appeal was still pending when he died—and voiding that conviction will impact the still-open wrongful death lawsuit.

“Abatement ab initio” is Latin and means to roll back a process to its beginning. The idea is that an appeal is a critical component of the criminal justice system because, among other things, it gives the public confidence that a conviction is valid.

If an appeal of a conviction is undecided when a defendant dies, there’s a chance that the verdict wouldn’t have stood. Thus, the conviction is voided and the defendant is treated as he was at the start of the criminal process: as if he’d never been charged, much less convicted.

Abatement of Hernandez’s conviction will mean that the Lloyd family won’t be able to rely on that conviction in the wrongful death lawsuit as proof that Hernandez was responsible for Lloyd’s death. They’ll have to present the evidence that established that conviction all over again, including having the witnesses re-testify.

The Hernandez case is hardly the first high-profile conviction vacated due to abatement.

For example, in 2006, the conviction of former Enron chairman Kenneth Lay on federal securities, conspiracy and fraud charges was voided after his death because his appeal was still pending.

Because Lay’s conviction was nullified, the government could no longer seize his estate’s assets to compensate the victims of his crimes. Instead, the government was forced to file a civil forfeiture action against Lay’s estate, seeking almost $13 million.

Both the Hernandez and Lay cases illustrate an essential flaw with abatement. The concept completely ignores the interests and rights of the victims of the crimes underlying the vacated convictions.

Why is the reputation of a dead man more important than the rights of those whom he was convicted of victimizing?

The impact of abatement on victims is very clear in a case like Lay’s, where the victims suffered easily quantifiable financial harm for which they deserve restitution. Victims in such cases may be able to get restitution through the civil courts, but they won’t be able to rely on proof of the conviction to make their cases.

Abatement’s impact is harder to quantify in a case like Hernandez’s but it nonetheless affects victims and their families. As the Supreme Court of Idaho explained in State v. Korsen, “Abatement of the conviction would deny the victim of the fairness, respect and dignity guaranteed by these laws by preventing the finality and closure they are designed to provide.”

The federal Crime Victims’ Rights Act gives victims specific, enforceable rights, including the right to be treated with “fairness and with respect for the victim’s dignity and privacy” as well as the right to “full and timely restitution as provided in law.”

Similarly, all states give crime victims certain rights. Most enshrine these rights in their constitutions. The continued use of abatement flies in the face of this national recognition of such rights.

As a bulletin from the National Crime Victim Law Institute says, “The death of a defendant, found guilty in a court of law, should not erase the rights of the victims left behind.”

Yes, the right to appeal one’s conviction is very important, as is the presumption of innocence. And that principle only applies until a defendant has been found guilty by a judge or jury. The presumption of innocence disappears upon conviction.

Abatement essentially extends the presumption of innocence until confirmation of the conviction on appeal and, practically speaking, presumes that the defendant would have prevailed on appeal had he lived.

However, it’s not logical or reasonable to presume that every dead defendant would have been vindicated by an appeals court.

For example, Lay’s co-defendant Jeffrey K. Skilling was convicted of similar charges, which were affirmed on appeal. As a result, Skilling was sentenced to 168 months in prison and ordered to forfeit approximately $42 million to be applied toward restitution for the victims of the fraud at Enron.

According to Bureau of Justice Statistics for criminal cases in state appeals courts in 2010, of the cases that were reviewed on the merits on appeal, 81% of the convictions were affirmed. In Massachusetts, where the Hernandez case is pending, of the 709 criminal cases decided by the appeals court in 2015, 603 (85%) affirmed the lower court’s decision.

Thus, most defendants’ convictions are not overturned on appeal, so why are we giving dead defendants the benefit of the doubt?

It’s also important to remember that, under abatement, the strength of the evidence against the defendant and the likelihood of his prevailing on appeal are irrelevant. The conviction is vacated as a matter of procedure and without any consideration of the merits of the defendant’s case.

For that reason, I believe abatement undermines the criminal justice system. No conviction should be overturned automatically without any regard for—or assessment of— the evidence or merits of the case.

Of course, the way around that concern would be to let the defendant’s appeal proceed after his death.

In fact, some states take this approach, allowing another individual, such as a family member, to substitute for the defendant for appeals purposes. But doing so is a waste of limited court resources. And where does it end—how many levels of appeal are enough? Must we let the case go all the way to the U.S. Supreme Court before letting the conviction stand?

A key difference between the Lay and Hernandez cases is that Lay died from a heart attack, while Hernandez killed himself. You could argue that when Hernandez chose to end his life knowing that his appeal was still pending, he essentially waived that appeal.

That argument is one that prosecutors in Massachusetts are making in challenging the application for abatement in the Hernandez case. They argued that dismissing the conviction would reward Hernandez for his “conscious, deliberate and voluntary act” of committing suicide.

Prosecutors also argued that because Hernandez was imprisoned for life without parole, his death means his sentence has now been served in its entirety. So arguments against “punishing” a dead man by letting his conviction stand are baseless.

Not to be crass, but once a defendant is dead, the status of his conviction doesn’t matter to him anymore.

That’s why the state of Connecticut dismisses the pending appeal of a deceased defendant on the grounds that it’s moot since the defendant is no longer alive and so wouldn’t benefit should the conviction be overturned. Moreover, if a new trial was granted on appeal, it couldn’t proceed because the defendant can no longer participate in his defense.

Robin Barton

Some commentators point to the potential unfair impact of letting the conviction stand on the defendant’s estate or family. Although it’s not unreasonable to consider those interests, they shouldn’t outweigh the interests of the criminal justice system as a whole or of the victims of the crime.

Bottom line: Abatement doesn’t further justice. The concept is innocent until proven guilty—not until proven guilty and confirmed on appeal.

 Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes readers’ comments.


Why Did South Carolina Punt on the Slager Case?

Former North Charleston police officer Michael Slager agreed last week to a civil-rights charge in exchange for avoiding a trial for the shooting death of Walter Scott. Was the state responding to signals from Washington?

The announcement last week of a “global plea agreement” in which Michael Slager resolved both his federal and state criminal prosecutions was surprising.  Readers may recall that Slager is the former North Charleston police officer who was caught on video killing a 50-year-old man named Walter Scott on April 4, 2015.

Slager is white; Scott was black.  Scott was unarmed and his crime was that one of the brake lights on his car was out.  He ran away when Slager pulled him over.  Slager gave chase, caught up with Scott, tased him, and knocked him to the ground.  Scott got up and ran away again.  Slager drew his gun, spread his feet in a stable shooter’s stance, took careful aim, and shot Scott five times in the back from 50 feet away.

Walter Scott during his service with the U.S. Coast Guard in the mid-1980s.

Slager then picked up his Taser, carried it over to Scott, and planted it next to the dying man.  He handcuffed Scott’s hands behind his back, stood over him, and watched him die.  He made no attempt to offer any first aid.  Finally, he lied about what happened, saying that he shot Scott during a struggle for the taser.

In case you had forgotten the incident, you can watch the vimeo here.

In June 2015, the state charged Slager with murder.  The case went to trial in November 2016, and back in December, the jury hung (meaning the jurors could not agree on a unanimous verdict).  News accounts of juror interviews suggested that the split was 11-1 or 10-2 for conviction on at least the lesser-included offense of manslaughter.

The jury foreman (the sole black juror) said that there was one juror who simply refused to consider convicting Scott of anything.  When asked to elaborate, he demurred, saying “I’ll leave it at that.”

The specter of race loomed large, obviously, over the shooting, the trial and the jury deliberations.

While the state case was pending, the federal government charged Slager with violating Scott’s civil rights (18 U.S.C. section 242) along with obstruction of justice (18 U.S.C. section 1512) and using a firearm to commit a crime of violence (18 U.S.C. section 924).

The federal case had been on hold pending the verdict in the state case.  Now, when a case ends with a hung jury, the court declares a mistrial, and sets the case for a retrial.  Most observers, myself included, assumed that the state would retry Slager, and that he’d be convicted.  He shot Scott five times in the back from 50 feet away on camera, for God’s sake.

Then, this week, rather than retry the state murder case, the State agreed to dismiss it entirely in exchange for Slager pleading to a single federal civil-rights charge.

The plea agreement is strange and troubling, and I want to explain why.  Let’s start with the plea agreement itself.  It’s available here.

Take a look and read along.  In the appendix, I list specific features that I find unusual.  You can read them first, or wait to the end.

Let’s start with the big-picture questions.

1.Why on Earth Did South Carolina Agree?

Say you’re a prosecutor.  You have a high-profile murder case.  The murder was caught on video, in broad daylight.  The defendant calmly shot the unarmed victim five times in the back as the victim was running away.  The defendant, who didn’t know that his actions were caught on video, then lied about the facts and planted evidence at the scene.

Your office deliberates, decides it’s a murder case, charges it, and takes it to trial.  The jury hangs; the split was, according to news reports, 10-2 or 11-1 for conviction.  Prosecutors are not in the habit of just dropping hangers.  Call any prosecutor in the country, right now, and ask: you just hung 10-2 for conviction.  Would you retry?  I challenge you to find a single “no.”

 So why did South Carolina just drop this one?  Was the state afraid of getting an acquittal on retrial?  No, I very much doubt it.  Watch the video: Walter Scott ran away from Michael Slager.  When Scott was 50 feet away, Slager calmly pulled his gun, took a careful shooter’s stance, and shot Scott in the back five times.  No prosecutor worth his or her salt would be afraid to take that case to trial.

Leaving aside all the other reasons to stick with this case—your community is up in arms, trust in the police is dangerously eroded—there’s the simple fact that this is a case in which the facts and law support a murder charge.  You try it through to a verdict.  If that takes a retrial, so be it.  You do not drop it out of fear that you’ll draw a racist juror who refuses to convict a white police officer.  And you do not drop it simply because the guy agreed to plead guilty to federal civil-rights charges.

(If it helps to get the point across, try reversing the facts: You’re a prosecutor and you have a state murder charge against a defendant who shot a cop in the back from 50 feet away, and you hang the first trial.  Is there any chance that you’d drop the case just because the defendant agrees to plead guilty to a federal gun-possession charge?  No, there is not.  Not a snowball’s chance in hell.)

So what changed between December 2016 and April 2017, to make the state willing to just toss aside its murder case? Well, we have a new administration in Washington.  But it’s not clear to me why that should have made the difference.Obviously, the new President and his new Attorney General are no friends of the police reform movement. They have ordered the DOJ to reduce federal oversight of police abuse, have terminated a DOJ scientific advisory panel on forensic evidence, and have tried to scuttle existing consent decrees with problem police departments.

But so what?  Why should that matter to the state of South Carolina?  I want to know who made this decision for the state. I don’t believe that in our federalist system, a sovereign state would dismiss a murder charge to curry political favor with a new administration in Washington.  I hope the state gives us a public explanation, telling us who made the decision, and why.

2.Why Did the Federal DOJ Agree?

It’s not clear to me that this is a great deal for the federal government either.  A guilty plea is a guilty plea, you might say.  Well, no, not really.  You don’t give away the store just to get a plea.  And this one is weird.  As I said, I listed some specific oddities at the bottom of this essay.  But let me focus on three here.

First, it leaves sentencing completely open, with no agreement about base offense level, adjustments, how it’ll be calculated, what the ranges are for each side to waive appeal, etc.  As readers know, federal sentencing is governed by the Federal Sentencing Guidelines, which is a detailed manual for calculating sentences.  Virtually all federal plea agreements require the defendant to agree to some basic framework for how the sentence will be calculated.  This one doesn’t have anything.

I have worked on hundreds of plea agreements, from both sides, and I don’t recall doing one that left the calculation completely open.  Obviously, you can write them that way—there’s nothing illegal about that—but it’s odd.  The point of a plea agreement for the government is that you’re getting some predictability about the sentence and avoiding the uncertainty of a trial.  In exchange, you give something up: you drop additional charges, or agree to a lower sentence than what you’d ask for after trial.

Here, the government is giving up the state murder prosecution, the federal obstruction charge, and the federal gun charge, and gets no agreement from the defense as to the parameters within which the sentence should be calculated.  I can tell you that in my old office, if a defense attorney called up and said, “I want a plea agreement where you drop three of the four charges, including the most serious one, and I get to argue whatever I want at sentencing,” the response (from every AUSA in the building) would have been: “And I want a pony.”

Second, the “factual basis” section of the plea agreement makes no mention of mens rea whatsoever, except to say that Slager acted “with the intent to do something that the law forbids.”  There’s not even any admission that he intended to kill Scott.

Come on, DOJ—if you think this is a murder case, treat it as one:  Make Slager stand up and say in open court: “I shot Walter Scott in the back and I intended to kill him.”  If you don’t think it’s a murder case, then have the guts to come out and say so.

Third, I want to emphasize one more time that the provision requiring the state to dismiss the murder charge is weird.  The state is not a party in the federal case; there is  no  legal interest or benefit for the federal government in the state dismissing the charge.  Is it conceivable that the federal prosecutors were worried about an acquittal?  Did Slager’s attorneys play chicken with the feds, and dare them that they couldn’t get a civil-rights conviction in South Carolina?

And were the feds were so worried about their case that they decided to take any plea they could get??

No, I refuse to believe that.    Clearly the defense didn’t think that a civil-rights acquittal was a slam dunk, or they wouldn’t have pled their guy to a charge with a potential life sentence.

So why?  Why not do what the feds normally do, and postpone federal proceedings until the end of state trial?  Then if the defendant is convicted, you have the option of either deciding that justice has been done, and dismissing, or proceeding on the federal charges as well.  And if the defendant is acquitted, then your federal trial is a fallback for seeing that justice is done.  (That’s what happened in the Rodney King case.)


Why agree to a deal that torpedoes the murder case?  The state case should not have been part of this deal.  As I said, I just cannot believe that the state called up the U.S. Attorney, and said “Please cut a deal so that we can drop this murder case.”  There had to have been some push from the feds to get South Carolina to join.

The depressing theory is that this is naked political theater, a chance for the Trump Administration to give the finger to the Black Lives Matter and police reform movements.  I truly, truly hope that’s not it.

Once again, to the state: Please give the public a full and truthful explanation of the decision-making process that went into this.

3.Did Slager Have Some Sort of Leverage?

This is a great deal for Slager; he got the state murder charge dismissed.  The deal is so good for him that you have to ask whether he had some sort of leverage to make it happen.  I have a tentative theory about what that leverage might have been.  It’s at least possible that the State was worried that the murder charge might be dismissed.

Here’s why.  At the close of evidence in the state trial, the state moved (over Slager’s objections) for a lesser-included instruction on manslaughter (SC Code § 16-3-50).  A “lesser-included” instruction is when the court tells the jury that if they vote to acquit the defendant on the charged crime, they can still convict on a lesser crime.  Defendants sometimes roll the dice (as Slager did) on an “all or nothing” strategy.

The Court ordered the jury not to deliberate on manslaughter unless they unanimously agreed that Slager was not guilty of murder.  The jury subsequently sent out several notes that—the defense argued—arguably indicated that they were thinking about manslaughter.  The defense argued that the notes meant that the jury had already unanimously rejected murder.

Slager’s attorneys made that argument in a motion in state court to dismiss the murder charge.  The motion is still pending.  Is that motion, then, maybe the leverage Slager had?

Maybe.  On the one hand, the jury questions are pretty weak tea.  For example, one note asked: “Why was manslaughter offered as an alternative?”  As the judge pointed out in court, the fact that the jury sent that note does not entail that the jury had unanimously decided to acquit on murder.  The note could be a single juror’s question, and/or have little or nothing to do with the substantive deliberations.  Juries send all kinds of notes.

Moreover, the judge also pointed out, if the jury in fact unanimously voted to acquit on murder, but were split on manslaughter, they could have returned their verdict that way (“Murder: not guilty; Manslaughter: deadlocked.”).  They didn’t; they came back and said they were deadlocked, period.

On the other hand, though, the jury foreman went on TV and told the nation that the jury “decided he wasn’t guilty of murder.”  The interview is short, but pretty definitive, it seems to me.  Watch it for yourself:  It sounds like the foreman is saying the whole jury rejected the murder count.

Now, does the foreman’s TV interview mean that, as a matter of law, Slager couldn’t be retried for murder?  No, of course not.

The jury did not return a verdict on the murder count, and post-trial juror interviews are almost never admissible evidence.  I would predict that the trial court would deny the motion and order a retrial.  But still… the judge hasn’t ruled on the motion yet, and the “implicit acquittal” argument definitely creates a viable appellate issue.  So if you’re the state, is that why you jump into the federal plea agreement?  Because you’re afraid that an appellate court will later find that the jury implicitly acquitted Slager on the murder count, thus precluding retrial?

I’m still not buying it.  I know prosecutors.  I used to be one.  I talk with them almost every day.  I have prosecutor friends and former students all over the state.  I just don’t buy it.  If you’re a prosecutor with what you believe is a righteous case, you try it.  You don’t wilt and dismiss at the first sign of a potential appellate issue.  Every trial creates appellate arguments.  If you think you have a righteous murder case, you try the case until you get a verdict—guilty or not guilty—on the murder charge.

Crime Report readers will be aware that Sessions, taking his cue from Trump, is trying to scuttle most if not all of the Civil Rights Division’s police oversight cases.  He’s ordered a “review” (read: termination) of pending police consent-decree cases, and he even sent a lawyer to Baltimore to try to undo the already-agreed upon consent decree there.

Sessions and Trump have sent many messages that the federal government is getting out of the business of investigating police brutality and racism.  What better forum to do that than in than the Slager case, probably the most blatantly unjustified police shooting of the past five years?

  1. What About Sentencing?

 As noted, the plea agreement leaves the guidelines calculation open, so to evaluate the possible sentence, we have to do the calculation ourselves.  It’s pretty straightforward.  You look up the charged offense (18 U.S.C. § 242), and you get 2H1.1 as your guideline.  Section 2H1.1(a) tells you to use the base offense level applicable to the underlying criminal act.  Then 2H1.1(b) tells you to increase by 6 if the act was committed under color of law (which it was).  Then you take off 3 for acceptance of responsibility.

So what’s the underlying act?  The government says it intends to ask the court to use the guideline for second-degree murder (section 2A1.2).  That’s a base offense level of 38. Add 6 and subtract 3 and you’re at level 41: 324-405 months.  (324 months is 27 years.)  The government also says it wants to ask for the obstruction-of-justice adjustment, which would add another 2 levels.  That would take us to level 43, which is life.

But the plea agreement does not specify any agreement by the parties as to what the predicate offense (and thus the base level) should be.  Slager will no doubt argue vigorously that the Court should use manslaughter, not murder, for the reasons given above.

That would make a huge difference.  If the judge agrees with Slager, and uses the manslaughter guideline, and not the murder guideline, to set the base level, then we’re at a base level 29 (2A1.3).  When we add 6 for “color of law,” and subtract 3 for acceptance, we’re at a level 32.  At Criminal History Level I (where Slager is), that’s 121 to 151 months.  So a low-end sentence would be ten years and one month, of which he’d do 80%.  Meaning he’s out in 96 months, or eight years.

Slager could even go further, and argue that his conduct was merely “reckless,” and thus the underlying predicate offense should be involuntary manslaughter, and the base offense level should be only 18.  18 plus 3 is 21, which gets you a range of 37-46 months.  Add 3 levels for obstruction and you’re still only at 51-63 months.

I think it’s unlikely that the court would go all the way down to involuntary manslaughter. But Slager could certainly argue for it—the factual basis, recall, does not include any admission that he intended to kill Scott.  But I think voluntary manslaugher is a real possibility.  That means there’s a real possibility that we see a 121-month sentence.

Conclusion: Why?

Under the plea agreement, the State is bound to dismiss the murder charge when Slager pleads—not when he’s sentenced.  So if the federal sentence is low, the State will be powerless to take any steps to get a stiffer sentence.  I don’t understand why the state agreed to that.

Until some South Carolina public official comes forward and says otherwise, this is a crime that the State of South Carolina believes was first degree murder, punishable by life in prison or execution.  If the State thought that a life sentence, or death, was appropriate in its murder case, and the judge only gives Slager ten years on the civil rights case, then the State has thrown away any opportunity to retry the murder case and get the justice it believes it is due.

Is the State willing to say publicly, right now, that it thinks eight years is enough time for this crimeIf not, they shouldn’t have signed onto this deal.

Which makes you wonder how committed the state government was to the Slager prosecution.  I’m sure at some point we’ll get some inside leaks about the decision-making process in DC and South Carolina.  Time will tell.

Editor’s Note: For ‘eight oddities’ worth noting in the plea agreement, click on the attached

Caleb Mason is a partner at Brown, White and Osborn in Los Angeles, a former federal prosecutor, and a regular contributor to TCR. He welcomes readers’ comments.





Trump Moving Fast On Federal Court Nominees

The president will nominate ten to federal courts today, a far earlier pace for judicial nominations than was set by Barack Obama and other recent presidents. Michigan’s Joan Larsen and Minnesota’s David Stras were on Trump’s list as possible Supreme Court nominees.

The White House today will announce ten of President Trump’s nominees for the federal courts, making a faster move on changing the face of the judiciary than any new president in the past quarter century, reports BuzzFeed News. Trump’s list include five nominees for federal appeals courts: two state supreme court justices who were on Trump’s list of U.S. Supreme Court contenders, one law professor, and two lawyers from private practice. The White House also will announce four nominees for the federal district courts and one for the Court of Federal Claims, which hears civil lawsuits against the federal government.

There are 129 open seats on the federal courts — making up about 14 percent of lower court judgeships — and 21 upcoming vacancies have already been announced. Trump’s move marks the administration’s first attempt at making a sizable dent in the large number of vacancies across the federal judiciary. It was the end of July in President Obama’s first year in office before he had announced a dozen judicial nominees.  Two appeals court nominees set to be announced were on Trump’s high court list: Michigan Supreme Court Justice Joan Larsen, who will also be nominated for the 6th Circuit, and Minnesota Supreme Court Justice David Stras, who will be nominated for the 8th Circuit. Kevin Newsom, a private practice lawyer in Alabama and the state’s former solicitor general, is to be nominated for the 11th Circuit; John Bush, a private practice lawyer in Kentucky, for the 6th Circuit; and Amy Coney Barrett, a University of Notre Dame law professor, for the 7th Circuit.


Police Raid MI Judge’s Court; Accused of Lying About Affair

Michigan State Police executed a search warrant and seized computers from District Judge Theresa Brennan’s courtroom. She is accused of lying about an affair with a state police lieutenant who was a key witness during a murder trial in her court in 2013.

Michigan State Police executed a search warrant and seized computers from District Judge Theresa Brennan’s courtroom Wednesday after, reports the Livingston, Mich., Daily. A plainclothes trooper entered the building at 3:45 p.m., flashed a badge and announced to the sheriff’s deputy working security that he had a search warrant for the judge’s chambers. A witness said the judge hurried out a rear door and drove off. The raid has the effect of closing down the court for business.

Brennan has been under scrutiny since her divorce proceedings revealed she had an affair with state police Lieutenant Sean Furlong, who was the lead detective during a 2013 double murder trial Brennan presided over. The pair admitted to the affair, but both testified in depositions in the divorce proceedings that the relationship began after the trial. An attorney for Jerome Kowalski, the trial subject who is serving a life sentence for murdering his brother and sister-in-law, is seeking to set aside the conviction based on the evidence revealed in Brennan’s divorce proceedings that allege she committed perjury when she testified that she spoke to Furlong once during the Kowalski trial. Phone records kept by Brennan’s ex-husband show the judge had 37 phone calls with Furlong during that time.