Some Progress Cited in ‘Disorganized’ Ferguson Court

The Missouri State Auditor investigated Ferguson’s municipal court after the Michael Brown shooting and found many problems. The auditor says the court is trying to address her findings but “there is still work that needs to be done.”

More than a year after finding significant problems with the Ferguson, Mo., Municipal Court, a new report shows the city has made some progress in fixing a system that was in disarray, the St. Louis Post-Dispatch reports. Last year, state Auditor Nicole Galloway issued a stinging report that said boxes of court records had become moldy after a water leak. She found pervasive disorganization, a reluctance by local officials to cooperate with her staff and $26,000 in illegal fees, earning the court the state’s worst ranking. The audit also cited a lack of oversight that resulted in at least $1,400 in missing funds.

“My last audit discovered careless and disorganized records management that led to serious questions as to the ability of the court to effectively serve citizens,” Galloway said. “While there is still work that needs to be done, efforts are underway to address the audit findings and implement better processes moving forward.” While Ferguson has not pursued criminal prosecution or restitution for the missing money, officials have worked to implement new procedures to better prevent and detect loss or theft in the future, Galloway said. The city has been under intense scrutiny in the four years since an unarmed black teenager, Michael Brown, was shot to death by a Ferguson police officer.
Galloway said the problems in Ferguson weren’t very different from most of the 20 other courts she has audited since taking office, saying municipal courts statewide appear plagued with illegal procedures, poor transparency and weak records management.


A ‘Holistic’ Approach to Wrongful Convictions

The “piecemeal” approach by state and federal court approach to addressing trial-level errors fails to account for the complex ways that seemingly independent errors interact with one another, writes a professor at the Northeastern University School of Law.

To set wrongful convictions right, appeals courts need to change the way they review evidence, according to Stephanie Roberts Hartung, a professor at the Northeastern University School of Law.

In “The Confluence of Factors Doctrine: A Holistic Approach to Wrongful Conviction,” Hartung argues that courts must adopt a holistic approach that accounts for the ways that errors in evidence-gathering often work in concert to obscure innocence.

“Frequently, it is not a single misstep that causes a wrongful conviction, but rather a ‘confluence of factors,’” she wrote.

But historically, state and federal court’s piecemeal approach to addressing trial-level errors fails to account for the complex ways that seemingly independent errors interact with one another.

Published in the Suffolk University Law Review, Hartung’s article points to the post-conviction jurisprudence developed by the Massachusetts Supreme Court in a number of cases, most recently Commonwealth v. Rosario in 2017, as an example of the approach she advocates. In each case, the court recognized that an approach which considered evidence in isolation would have failed to identify the wrongful conviction at hand.

Recent data suggests that the criminal appeals process is largely failing to protect against wrongful convictions. Prof. Brandon Garrett of Duke Law School finds that only 14 percent of factually innocent defendants who were ultimately exonerated by DNA evidence initially won a reversal on appeal—meaning that 86 percent of the time, courts do not recognize valid claims of innocence.

This is in part because the appellate process focuses more on fixing procedural mistakes than re-adjudicating questions of guilt.

The harmless-error doctrine poses another obstacle to the wrongfully convicted. Courts apply the philosophy that not every error is worth the trouble of addressing with little rhyme or reason, often ignoring the ways that errors can build upon each other.

As an example, Hartung writes, “a suggestive eyewitness identification procedure can lead to a misidentification, which in turn can cause a flawed forensic analysis of related physical evidence that may be tainted by the examiner’s knowledge of the previous identification.”

But viewing each of these errors in isolation masks the way that one leads to another, “making the evidence in support of guilt appear stronger than it is.”

Cognitive biases also play a role in keeping the innocent behind bars. Criminal justice actors tend not to question the validity of forensic evidence, and jurors often rely heavily upon evidence against a defendant while downplaying evidence of innocence.

Holistic review reveals the way that one piece of faulty evidence can infect other evidence. In the Rosario case, erroneous but seemingly scientific forensic evidence tainted what appeared to be independent corroborative evidence, and combined with a tendency to overlook exculpatory evidence to put an innocent man in prison. It was only when the evidence was reexamined all together that Rosario was ultimately exonerated.

As the number of exonerations grows, it becomes clear that wrongful convictions are not as rare as was once believed. The National Registry of Exonerations has counted 2,257 exonerations since 1989, and that number rises each year.

These cases demonstrate the need not just for prospective reforms that aim to prevent wrongful conviction, but retrospective reforms that seek to identify false convictions that have already taken place, wrote Hartung.

“A wrongful conviction of an innocent person is a profound failure of justice and typically does not occur as a result of a single, isolated error,” she wrote. “Now is the time for courts to adapt their approach to post-conviction review of innocence claims.”

Elena Schwartz is a TCR news intern. Readers’ comments welcome.


Democrats Close to Conceding on Kavanaugh

Barring a major revelation, the Senate is poised to install the 53-year-old Brett Kavanaugh on the high court. Sen. Susan Collins (R-ME), seen by Democrats as a swing vote, is signalling her likely support of the nominee.

Democrats have all but acknowledged that they are unable to stop the Senate from confirming Brett Kavanaugh for the Supreme Court, reports the Washington Post. Moderate Republican senators such as Susan Collins of Maine are sending strong signals that they will back Kavanaugh. Several Democrats facing difficult reelections have indicated they are open to voting for the judge. Leaders of the resistance already are delivering post-mortem assessments and blaming fellow Democrats for a looming failure. Barring a major revelation, the Senate is poised to install the 53-year-old Kavanaugh on the high court and take the next step toward fulfilling President Trump’s pledge to remake the federal judiciary, potentially for decades.

“There were too many Democrats who decided out of the gate that this was an unwinnable fight,” said Brian Fallon of Demand Justice, a leading anti-Kavanaugh group that will continue to battle the nomination. The fizzling campaign to block Kavanaugh underscores the relative weakness of the Democrats, who had promised their political base a pitched battle to protect the Roe v. Wade abortion ruling and other liberal causes. Democratic leaders have sought to portray the would-be justice as a far-right ideologue and targeted a handful of senators seen as persuadable. Confirmation hearings for Kavanaugh will begin Sept. 4. Forty-nine of the 51 Republican senators have expressed full support or likely backing, shifting the focus to Collins and Sen. Lisa Murkowski of Alaska and three centrist Democrats, Joe Manchin III (WVA), Heidi Heitkamp (ND) and Joe Donnelly (IN). Maine’s Collins decried the “overblown” rhetoric from the sharpest Kavanaugh critics. She has been a reliable Republican vote, backing Kavanaugh in 2006 when President George W. Bush nominated him to the U.S. Court of Appeals for the District of Columbia. Collins has never voted against a Supreme Court pick.


Participatory Defense: Shifting the Courtroom ‘Balance of Power’

A Brooklyn, N.Y,-based grassroots group is teaching people with substance abuse disorder how to avoid getting ensnared in the criminal justice system.  Organizer Jason Del Aguila says the first step is empowering individuals in their encounters with the courts and police.

VOCAL-NY, a Brooklyn-based grassroots organization seeking to empower low-income people affected by substance use disorder, recently launched a participatory defense program aimed at teaching people how to avoid getting ensnared in a criminal justice system that often works against them.

The goal is to combine traditional harm-reduction services, such as syringe exchange and HIV and hepatitis C testing, with less tangible resources, such as knowing how to de-escalate an encounter with law enforcement.

Participatory defense is a companion to Court Watch NYC, a collaborative program between VOCAL-NY and public defenders that trains community members to observe and document trends in criminal court arraignments and hearings.

“I realized we needed a program that did more than Know Your Rights and ‘CopWatch’ trainings, which focus on filming police encounters, de-escalation and documenting, and don’t necessarily go through all the court processes,” explained Jason Del Aguila, who is in charge of the participatory defense effort.

“The idea was, how do we help you navigate through the everyday legal gauntlet, from the streets to the courts, and even after doing time?

“We’re creating community efforts to keep people from becoming another victim of an injustice system.”

He says that often means helping participants understand court documents and organize support in advance of hearings, but more often the aim is to prevent them from getting arrested in the first place.

“I’ve had people who say, ‘It doesn’t matter, the cops can do whatever they want,’” Del Aguila said, “So I teach them, this is what you can do to prove that they did something wrong.”

Participatory defense is not a new concept, or even a single unified program with a defined set of protocols. Modeled on Silicon Valley De-Bug, a community advocacy and storytelling organization founded in 2001 in San Jose, the movement encourages family and friends of the accused to help with their defense.

According to the Albert Cobarrubias Justice Project, which promotes the national expansion of participatory defense, the goal is to provide additional leverage to overburdened public defenders.

Since about 80 percent of felony defendants in state court systems rely on public defenders, criminal justice reformers say participatory defense has the potential to “change the balance of power in the courts.”

Over the past decade public defender organizations in more than a dozen municipalities, including Philadelphia, Baltimore, Memphis, and Birmingham have established some form of a participatory defense program.

But some advocates say that the stigma associated with drug use and substance use disorder has promulgated a two-tiered system of advocacy that excludes users of drugs like heroin and crack cocaine.

“In progressive circles, there’s always been this sort of distinction between the deserving poor and the undeserving poor,” said Paul Cherashore, an activist who spent more than two decades working in harm reduction circles in New York and Philadelphia.

On the Bottom Rung: Drug Users

“Drug users have always held this bottom rung when it comes to providing aid or advocacy.”

VOCAL-NY’s program is among the first in the nation to combine traditional harm-reduction services with formal participatory defense training.

“As a harm-reduction agency, we do everything we can to reduce the harms associated with drug use,” said Alyssa Aguilera, co-executive director of VOCAL-NY. “Most of the time that means providing sterile syringes to prevent disease transmission or teaching people how to reverse an overdose with Naloxone.

“But it can also mean supporting people when they get arrested and helping them navigate the criminal legal system through participatory defense. For our participants, most of whom also struggle with poverty and homelessness, it’s often the police and prosecutors that cause the most harm, not their drug use.”

VOCAL-NY’s Del Aguila leads its participatory defense trainings two days per week, where he encourages people to share their experiences with the criminal justice system. His seminars also include teaching clients how to organize court support for hearings, and how to identify and protest unjust policing patterns like ethnic profiling or stop-and-frisk.

He also instructs VOCAL-NY participants on their legal rights and walks them through defusing encounters with police.

“Anything you say or do can and will be used against you, so don’t say shit,” Del Aguila said. “Whether you’re holding drugs or not, ask if you are being detained, and if the answer is no, then leave immediately.

“And if you’re asked to consent to a search, answer no, and say it loudly and clearly so any witnesses can hear.”

christopher moraff

Christopher Moraff

“I try not to make it about having a competition with the cops because you’re gonna lose even if you’re right,” he adds. “You’re trying to win against someone who has the odds stacked for them.”

See also: Friends in Court: The Growing Impact of Participatory Defense

Christopher Moraff is a Philadelphia-based freelancer who writes on criminal justice, policing and civil liberties. A contributor to The Crime Report, he has also written for Al Jazeera America, The Daily Beast, and The Philadelphia Inquirer, among others. This story was published earlier in The Appeal, and is reproduced with their permission. Chris welcomes readers’ comments.


Is Justice Class-Blind?

A forthcoming study by a University of Texas-Austin law professor says conservative jurists have begun to question precedents applying the equal protection clause of the Fourteenth Amendment to poor Americans.

An emerging body of conservative jurisprudence asserts that poor Americans are not eligible for special protection under the Constitution, setting up a conflict with decades of precedent in which the Fourteenth Amendment’s guarantees of equal protection under the law have been applied to class-based arguments.

In a synopsis of her forthcoming Yale Law Journal article, Professor Cary Franklin of the University of Texas at Austin School of Law examines the forms of class-based constitutional protection that the Supreme Court has developed over time, and explores how they are under attack by conservative judges.

The Court has never recognized the poor as a protected class, and class-based discrimination does not receive heightened scrutiny under the equal protection guarantees of the Fourteenth Amendment the way that race-based and sex-based discrimination do.

But legal advocates have won some major class-related victories this year.

In January, an appellate court ruled that California’s money bail system violated the Fourteenth Amendment rights of indigent defendants. A month later, the Fifth Circuit Court held money bail procedures in Harris County, Texas, unconstitutional on the grounds that they keep the “poor arrestee” behind bars “simply because he has less money than his wealthy counterpart.”

These cases are based on long-standing precedents where the Court demonstrated a clear degree of class-consciousness, writes Franklin. For example, the Court uses an “undue burden test” to assess whether abortion regulations are constitutional. To be permissible, a regulation must not impose an undue burden on the subset of women who are realistically affected by it – oftentimes poor women. Even if a regulation does not unduly burden wealthier women, it is deemed unconstitutional if it places an undue burden on their indigent counterparts.

The Court applies a similar test in cases involving voter ID laws. If an ID requirement unduly burdens voters for whom the requirement constitutes a real obstacle – not just the average voter – it is unconstitutional.

Nevertheless, conservative judges have recently been claiming that it is constitutionally impermissible for courts to take class into account under the Fourteenth Amendment.

In 2013, the Fifth Circuit Court tried to curtail the undue burden test in Whole Woman’s Health v. Hellerstedt, ruling that judges could consider only the obstacles created by the law itself when determining whether a regulation unduly burdens the right to abortion. This would rule out consideration of obstacles such as lack of transportation, the need to find childcare, etc. Though the Supreme Court later overturned the ruling, some Justices (in dissent) expressed support for this approach.

Certain judges have also advocated class-blindness in the context of voting rights.

This approach has no root in precedent, Franklin writes, adding that a majority of Supreme Court Justices have thus far rejected it when it has arisen. But whether they will continue to oppose efforts to dismantle class-related fundamental rights protections, particularly with another Trump-appointee on the Court, is impossible to say.

Elena Schwartz is a TCR news intern. She welcomes comments from readers.


Memo to Prosecutors: Listen to the People You Punish

 While there are good constitutional reasons for barring prosecutors from speaking directly with defendants without their attorneys’ permission,  it shouldn’t prevent them from trying to understand the lives and perspectives of those most affected by what they do, writes a former assistant district attorney.

You don’t expect to hear much from somebody who has been told “anything you say can and will be used against you.”

Indeed, a defendant’s voice is usually only raised after it is safely behind the wall of attorney-client privilege. 

 And so, while the right to remain silent is a vital protection guaranteed by our justice system, it has the unfortunate side effect of ensuring that prosecutors are never in a position to hear about—or truly understand—the lives of those they prosecute.

Prosecutors are barred from speaking directly with any defendant represented by counsel without the permission of that attorney. As a result, to the extent that any information is exchanged, it is usually with defense counsel acting as intermediary in a bad game of telephone that tends to strip nuance and humanity from the narrative.

This makes it all too easy for a prosecutor to regard a defendant as little more than a name on a case file.

A welcome crack in this wall of silence was made at Suffolk County, Mass., recent district attorney candidates’ forum at the Suffolk County House of Correction. Potentially the first of its kind, this event flipped the usual script by placing incarcerated individuals in the questioner’s chair, allowing them to force the candidates to consider prosecutorial objectives and actions from the viewpoint of the prosecuted.

Such perspectives tend to be lost when it is time for prosecutorial policy to be made, and justice suffers for it. Surrounded by police officers and victims, and operating in an environment that too frequently speaks in terms of binary outcomes— guilty or not guilty—it can be easy to forget that while our system may be adversarial, that should not apply to rehabilitation.

If these district attorney candidates are serious about preventing future crimes, not simply punishing past ones, then they cannot lose sight of this goal.

Advancing policies with a more cooperative focus, including diversion programs that provide alternatives to the criminal system, is key to realizing this objective. Similarly, district attorneys have incredible authority and discretion to shape the dispensation of justice within the system through charging, bail, and sentencing guidance.

Thoughtful and nuanced policies can help reinforce for prosecutors that the institutional ideal is justice, not convictions, and that the two are not always one and the same.

Of course, there are also limits on the ability of district attorneys to control events, even within their own offices. Especially in Massachusetts’ district courts, which handle around 170,000 cases annually involving misdemeanors and less serious felonies, cases come too fast and justice is meted out too messily for top down decision making to be effective.

This is why district attorneys must work to ensure that even their newest assistant district attorneys are exposed to training and experiences that will better help them view cases in shades of gray rather than black and white.

As basic and blunt a measure as it may seem, leaders should encourage—if not outright mandate—that all new assistant district attorneys visit their local jail and experience, if only briefly, the nature of that confinement. With the wisdom of hindsight, it now seems like borderline malpractice that I could have argued for years as an assistant district attorney in Essex County to send people to a jail I had never even seen.

While this oversight speaks to my own shortsightedness, it also points to a greater institutional failing given that my experience—or lack thereof— was hardly an outlier in the office.

Trust is, understandably, difficult to come by in the criminal justice system. As such, it is hard to fault a defense attorney who counsels his or her client to remain tight lipped in the presence of the prosecutor. Indeed, in many instances, this will be the best course of action.

For some, particularly more minor crimes, however, the defense may find value in opening a dialogue with the other side.

Rarely did I ever encounter a more powerful advocate than a defendant himself. Not in terms of legal arguments—I saw plenty of proof of the old maxim “a man who is his own lawyer has a fool for his client” —but in the ability to provide context to actions and depth to characters. These encounters often favorably shaped my view of the defendant in a given case and even helped, over time, to shift my approach to prosecution.

One debate in a Suffolk County jail may not fundamentally alter how these prospective district attorneys act once in office, but forcing them to consider the viewpoints of incarcerated individuals is an important first step toward piercing the insular nature of prosecutorial culture.

Lars Trautman

Lars Trautman

The more that can be done to reduce the inherent, silent “othering” of criminal defendants, the closer the justice system will come to living up to its name.

Lars Trautman is a senior fellow at the R Street Institute. He previously served as an assistant district attorney in Essex County, Massachusetts.


Panel Urges Impeachment for All Four WVA Justices

West Virginia’s House Judiciary Committee adopted articles of impeachment against all four justices on the state’s Supreme Court of Appeals, accusing them of a range of crimes and throwing the court’s immediate future into disarray, A fifth seat on the court is vacant.

West Virginia’s House Judiciary Committee has adopted articles of impeachment against all four justices on the state’s Supreme Court of Appeals, accusing the judges of a range of crimes and throwing the court’s immediate future into disarray, NPR reports. The articles of impeachment recommend that the entire bench — Chief Justice Margaret Workman, Justice Allen Loughry, Justice Robin Davis, and Justice Elizabeth Walker – be impeached “for maladministration, corruption, incompetency, neglect of duty, and certain high crimes and misdemeanors.” West Virginia has five Supreme Court justices, who are elected to 12-year terms. The bench was reduced to four in July, when Justice Menis Ketchum resigned just as impeachment proceedings were set to begin.

Many of the articles aim at Loughry — whom a federal grand jury indicted on a number of serious charges that include fraud, witness tampering and lying to federal investigators. The investigation centered on Loughry’s use of official vehicles, the expensive renovation of his Supreme Court office — and moving of a historic “Cass Gilbert” desk from a Capitol building to his home office. The 14 newly adopted articles accuse all the justices of overspending to remodel their offices and of failing to properly execute their administrative duties. “This is truly a sad day for West Virginia, but it is an important step forward if we are going to restore the public’s confidence in the judiciary,” said Judiciary Committee Chairman John Shott, a Republican. The full House is slated to vote on the impeachment articles next Monday; if approved, they would then move to the Senate. “It’s a coup,” said Delegate Barbara Evans Fleischauer, a Democrat who is the judiciary committee’s minority chair. She sees the timing as a ploy to allow Gov. Jim Justice — a former Democrat, now a Republican — to appoint the majority of the justices.


SpiderOak’s Warrant Canary Died

BoingBoing has the story. I have never quite trusted the idea of a warrant canary. But here it seems to have worked. (Presumably, if SpiderOak wanted to replace the warrant canary with a transparency report, they would have written something explaining their decision. To have it simply disappear is what we would expect if SpiderOak were being forced to comply…

BoingBoing has the story.

I have never quite trusted the idea of a warrant canary. But here it seems to have worked. (Presumably, if SpiderOak wanted to replace the warrant canary with a transparency report, they would have written something explaining their decision. To have it simply disappear is what we would expect if SpiderOak were being forced to comply with a US government request for personal data.)

EDITED TO ADD (8/9): SpiderOak has posted an explanation claiming that the warrant canary did not die -- it just changed.

That's obviously false, because it did die. And a change is the functional equivalent -- that's how they work. So either they have received a National Security Letter and now have to pretend they did not, or they completely misunderstood what a warrant canary is and how it works. No one knows.

I have never fully trusted warrant canaries -- this EFF post explains why -- and this is an illustration.


Ginsburg Planning Five More Years On the High Court

Justice Ruth Bader Ginsburg’s declaration brought relief to liberal fans who have been obsessing over her health since the beginning of the Trump administration and the nomination of two conservatives to the court.

Justice Ruth Bader Ginsburg hopes to sit on the Supreme Court for five years or more. During a speaking appearance Sunday after a performance in New York City of “The Originalist,” a play about the late Justice Antonin Scalia, she said, “I’m now 85. My senior colleague, Justice John Paul Stevens, he stepped down when he was 90, so think I have about at least five more years, reports CNN. Ginsburg’s declaration brought relief to liberal fans who have been obsessing over her health since the beginning of the Trump administration, the Washington Post reports.

She has survived both colon and pancreatic cancer. Her widely publicized exercise routine, known as the “RBG workout,” includes push-ups, planks and arm curls. Asked about her health in the documentary “RBG,” the Supreme Court justice says “she’s proud of keeping herself in shape to do this job.”Asked last year if she was contemplating retirement, she said, “as long as I can do the job full steam, I will do it.” She has reportedly hired law clerks through 2020, sending the message that she plans on sticking around. There are also those video clips of Ginsburg nodding off during the State of the Union address. She is already five years past the average retirement age of the past 11 justices, and is three years older than retiring justice Anthony Kennedy. As a presidential candidate, Trump responded to her public criticism of him by calling on her to resign, tweeting that her “mind is shot.” Her liberal supporters reject that possibility, particularly now that Trump has nominated two conservative justices, Neil Gorsuch, who was confirmed, and Brett Kavanaugh, whose nomination is pending.


Jordanian Immigrant Convicted of ‘Honor Killings’

Ali Mahwood-Awad Irsan could face the death penalty after a Texas jury convicted him of killing his daughter’s American husband and an Iranian women’s rights activist.

A Jordanian immigrant could face the death penalty after a Texas jury convicted him of killing his daughter’s American husband and an Iranian women’s rights activist in what prosecutors call “honor killings,” the Associated Press reports. Prosecutors say Ali Mahwood-Awad Irsan was enraged when Nesreen Irsan left home to marry a Christian and convert to Christianity, so he arranged the killings of his son-in-law and his daughter’s close friend who had encouraged the marriage.  “Honor and shame, that’s what this is all about,” special prosecutor Anna Emmons told jurors. “You heard him say honor is a big deal to him. And the only way to clean that honor is to kill.”

The trial in Houston lasted five weeks. Jurors deliberated for just 35 minutes Thursday before convicting him in the deaths of Coty Beavers and Gelareh Bagherzadeh. A sentencing hearing was set to begin Friday. Irsan faces life in prison or the death penalty. Irsan testified that his daughter caused his family pain after running away to marry Beavers, and that Bagherzadeh had encouraged the union. Nesreen Irsan testified that her father forbade her from dating Christians. She went to court to obtain a protective order to stop her family from harassing her after she moved in with Beavers. Ali Mahwood-Awad Irsan acknowledged that he violated the protective order by continuing to call his daughter and drive near Beavers’ home. He said he was concerned his daughter was on drugs and making bad decisions.