Poland Mulls Proposal to Wipe Out Supreme Court

A contentious bill that is racing through the legislative process would dismiss the country’s current Supreme Court judges and let President Andrzej Duda appoint new ones. There were mass protests against the proposal in Warsaw and other cities, and the European Union has voiced stern opposition.

Poland’s Senate opened debate Friday on a contentious draft law that would dismiss the country’s current Supreme Court judges and let President Andrzej Duda appoint new ones, reports the Associated Press. Earlier, a special Senate commission swiftly reviewed and approved the bill, which critics say opens the door to political influence over the nation’s top court. Tens of thousands of protesters took to the streets in Warsaw and other cities, demanding it be repealed. Critics say they proposal violates the nation’s constitution. A vote by the full Senate was expected later Friday.

Top judicial bodies in the neighboring Czech Republic took the unusual step of issuing a statement calling the latest steps by the Polish government “an unprecedented attack on judicial independence.” The European Union has also condemned the proposed law and the speed with which it was pushed through. European Council head Donald Tusk, Poland’s former prime minister, says the proposed law contradicts EU values and is hurting Poland’s international image. Both the Polish Senate and lower house are controlled by the conservative Law and Justice party. The bill needs only Senate approval before Duda signs it into law.

from https://thecrimereport.org

How Concealing Key Evidence Convicts the Innocent

A June 22 Supreme Court ruling that evidence which might prove a defendant’s innocence does not necessarily have to be presented by prosecutors represents a major setback to constitutional guarantees of a fair trial, argues the founder of the National Registration of Exonerations.

On June 22, in Turner vs. United States, the Supreme Court, by a 6 to 2 vote, affirmed the murder convictions of seven men. Unlike most Supreme Court decisions, Turner went largely unnoticed.

It deserves more attention, but not because it announced a new legal rule. Instead, Turner reaffirmed a terrible old rule that has done great harm to the accuracy of criminal trials, and will continue to do so.

The crime in the Turner case was horrific: in 1984, a middle-aged woman was grabbed off the street in Washington D.C., beaten, sexually assaulted and killed in an alley. The defendants were convicted on the theory that they were part of a group of a dozen or more who committed this atrocity.  No DNA, fingerprints or physical evidence of any other kind connected any of the defendants to the crime.

Twenty-six years later, the defendants’ attorneys learned that prosecutors had concealed a laundry list of evidence that would have helped their defense at trial.

In particular, one witness identified a man at the scene of the crime as James McMillian, a local resident who was arrested several weeks later for beating and robbing two other neighborhood women, and was later convicted for robbing, sodomizing, and murdering a third young woman in an alley. And another witness testified that he heard moans—apparently from the victim—coming from inside a garage that was too small for a crime with 12  or even six perpetrators.

The Justice Department agreed that this evidence should have been disclosed at trial. The only issue was whether concealing that evidence made the trial fundamentally unfair, and requires a new trial.

In Brady v. Maryland, in 1964, the Supreme Court ruled that the government is constitutionally obligated to disclose evidence that is favorable to the defense in a criminal trial if that evidence is “material” to the case.

Later cases held that evidence is only “material” under Brady if there is a “reasonable probability” that the outcome of the trial would have been more favorable to the defendant if the evidence had been disclosed. Otherwise, under Brady, the prosecution may conceal favorable evidence from the defense and the trial court.

This standard is impossible to apply.

A prosecutor has to decide whether to disclose favorable evidence before the trial begins. At that point, she does not know what her own witnesses will say under oath (there are many surprises) let alone what the defense might put on. How can she possibly know before trial whether undisclosed evidence might tip the jury’s decision at the end of that trial? And who would trust a lawyer to make that decision about a case she herself is litigating?

Trial lawyers often believe, unrealistically, that their cases are airtight. In this setting, self-confidence is self-serving: it can lead prosecutors to decide that it’s OK to hide troubling evidence, which makes their job a bunch easier.

When a prosecutor does hide evidence, chances are nobody will ever know. If somehow it does come out, a court reviewing the case faces the same impossible question—what might have happened at trial if these facts had been known to the defense?—with an added twist: Judges are extremely reluctant to reverse jury verdicts and order new trials.

Not surprisingly, they usually conclude that concealed evidence was “immaterial” and therefore never had to be disclosed in the first place.

That’s just what the Supreme Court did in Turner. The majority points out that the hidden evidence is only exculpatory if McMillian committed the crime alone and not as another member of a large group. But none of the defendants disputed the prosecution’s claim that the victim was attacked by a group. Instead, each said that he was not involved, but his co-defendants might have been—and two additional defendants pled guilty and testified for the government in return for reduced sentences.

In that context, the majority concludes that disclosing the hidden evidence would have made no difference; presumably because there was little or no doubt that the defendants were in fact guilty.

However, as Justice Kagan points out in her dissent, no defendant argued that the murder was the work of a single person because they had no idea that there was evidence to support that claim.  If they had known what we now know, the trial might have been totally different, including what was disputed and who testified. The two defendants who pled guilty might not have done so, and all of the defendants might have been acquitted—perhaps because they are innocent.

Is that a pipedream?

Consider two disturbingly similar cases:

  • In 1989, five teenagers in New York confessed to being part of a gang that attacked and raped the victim in the Central Park Jogger case, but each denied actually raping her. They were all convicted in 1990—but exonerated 12 years later when DNA confirmed the confession by an older serial rapist and murderer that he committed the crime alone.
  • Also in 1989, six defendants were convicted of jointly assaulting, raping and murdering an elderly woman in Beatrice, Nebraska. Four of them had confessed, and five pled guilty in return for reduced sentences. In 2009, all six were exonerated when DNA evidence proved the crime was committed by a lone man from Oklahoma whom none of the innocent defendants knew.

Nobody doubted the guilt of these eleven defendants when they were convicted—even through, as in Turner, no physical evidence connected them to the crime. All but two had confessed; several pled guilty; none argued that the crime in their case was the work of a single person. All that would have changed if the defense had any information identifying the real criminals.

Concealing exculpatory evidence is not a rare problem. In 2013, then-Chief Judge Alex Kozinski of the Ninth Circuit Federal Court of Appeals wrote that “There is an epidemic of Brady violations abroad in the land,” because courts have defined “materiality” so narrowly that prosecutors rarely if ever have to face consequences if they hide evidence that favors defendants.

The National Registry of Exonerations (which I founded) lists 2,061 innocent defendants who were convicted of crimes in the United States and later exonerated, from 1989 on, including 802 who were convicted of murder. In half of the murder exonerations (398/802) the prosecution concealed exculpatory evidence at trial, including 17 cases with innocent murder defendants who pled guilty, 57 with defendants who falsely confessed, and 91 with supposed accomplices who confessed and falsely implicated the defendants.

And of course, as Judge Kozinski has noted, the great majority of similar cases are never detected, and the defendants, if they are innocent, are never exonerated.

I don’t know whether the defendants in the Turner case are innocent or guilty, or how their trial would have turned out if all the evidence had been fairly presented. Unlike the Supreme Court, I don’t believe we can tell by looking back and guessing 25 years after the fact.

Our best hope for avoiding tragic mistakes is to present all the evidence that matters the first time around.

Why not eliminate the “materiality” requirement entirely and treat access to exculpatory evidence like other aspects of a criminal defendant’s constitutional right to a fair trial? If exculpatory evidence is concealed, it’s a violation of the Constitution, period.

This would not mean that every violation requires a new trial. Courts often uphold convictions despite constitutional violations, because they are convinced beyond a reasonable doubt that the violation had no impact on the outcome. But that’s a tougher exception to meet, and it includes a critical message: Hiding exculpatory evidence is always a violation of the constitution.

Samuel Gross

Justice Kagan concedes in her dissent that the majority’s conclusion in Turner “is not indefensible.”

That’s right, unfortunately, given the rule the Supreme Court applied. But that rule itself is indefensible, and should be changed.

Samuel Gross is professor of Law at the University of Michigan, and the founder and Senior Editor of the National Registry of Exonerations. He welcomes readers’ comments.

from https://thecrimereport.org

Abandoned Justice

After a murder conviction is overturned, how eager are prosecutors to reexamine the evidence and find the real killer? A journalist who investigated 263 vacated cases around the nation since 2006 says it happens rarely.

Ninety-two year-old Emma Crapser spent the last night of her life playing Bingo at St. Joseph’s Roman Catholic Church, about a half a mile from her Poughkeepsie, N.Y. apartment. Upon her return home, she was murdered, apparently in the course of an intended robbery.

Six years later, in December 1983, a 24-year-old black man named Dewey Bozella was convicted of her murder and sentenced to 20 years to life in prison. In May  1990, a judge found that prosecutors had improperly excluded black people from Bozella’s jury and ordered a new trial.

Bozella was convicted again. Then, in 2009, another judge vacated that conviction. This time, the district attorney declined to file new charges and Dewey Bozella found himself, after 26 years behind bars, a free man.

The court’s decision to overturn the conviction was based on its determination that the prosecution had failed to disclose exculpatory information to Bozella’s trial lawyer. This included information that undermined the credibility of key witnesses—like statements that contradicted their court testimony and deals in their own criminal cases—and pointed to the likely involvement of others in the crime.

Among the other suspects were two brothers who ended up going to prison on 25- year-to-life sentences for the robbery and brutal beating of two disabled elderly sisters, Madeline and Catherine King, and the murder of a third, Mary, in their family home about a half a mile from where Crapser had lived, eight months after Crapser was killed.

One of these men also had been implicated in the violent assault in the same neighborhood of yet another elderly woman, Estelle Dobler, carried out two months after Crapser’s murder and for which no one was ever prosecuted.

In its response opposing Bozella’s bid to overturn his conviction, the Dutchess County district attorney’s office downplayed the similarities among these three crimes; (but) in his 2009 decision to vacate the conviction, the judge called them “striking.”

As it turned out, one of the brothers convicted in the King case was released on parole months before Bozella was freed.

In 2015, Dutchess County settled a civil suit with Bozella for $7.5 million. To finance the payout, the county was forced to issue bonds.

[The same year,] 38 years after her murder, the Poughkeepsie Journal asked “Who Killed Emma Crapser?”

The newspaper offered no definitive answer, but the question itself points to a broader issue that tends to be underexplored in the context of wrongful convictions: what typically happens with respect to the underlying crime—and, by implication, [what happens to] the cause of justice and of public safety—when the person found legally responsible for committing it is later determined not to be?

How many murder cases might there be like Emma Crapser’s?

I set out to answer this question, using the National Registry of Exonerations, news reports and court filings, first to identify all of the murder convictions vacated nationwide since 2006 that, like Bozella’s, did not hinge on DNA evidence.  I excluded any case in which the vacated conviction involved a finding that a murder had not been committed (as has happened, for example, in several arson cases charged as murders but later determined to be accidents).

I looked exclusively for murder cases because murder typically has no statute of limitations, and therefore can be prosecuted at any time, even decades after the crime occurred, if new evidence or a new suspect is identified. Finally, I limited my search to the past 11 years on the assumption that it might be easier to get information about relatively recent vacated convictions than those overturned several decades ago.

My research turned up a total of 263 vacated murder convictions that fit this criteria (according to the National Registry, there have been a total of 2,034 known exonerations in the United States since 1989.).

This number does not represent 263 murders, but wrongfully convicted defendants.  In some cases, multiple people were wrongfully convicted for the same murder, while in others one person was wrongfully convicted for murdering more than one person.

Of the 263 people whose convictions were vacated, 161 were black; 65 white, 33 Hispanic and four Native American.

A vacatur is not equivalent to a determination of actual innocence; convictions must be overturned not only when there is a finding of factual innocence, but also when a defendant’s constitutional rights have been violated, regardless of guilt or innocence. In fact, very few wrongfully convicted people are ever able definitively to “prove” their innocence, though in the course of the appeals process many end up presenting evidence that calls their guilt into question.

Here’s what I discovered:

Forty-eight of those who were wrongfully convicted were re-tried after their convictions were vacated, and all were acquitted. Following these acquittals it appears that no new suspects were charged, except in one case where an additional suspect had been arrested outside the county a year before the vacatur, was extradited to the US, and pleaded guilty to the crime a month after the wrongfully convicted defendant was acquitted four years later.

Of the remaining 215 wrongful convictions, prosecutors charged a new suspect in murders related to just 16, or 7%, of them.

Notably, in 11 of these 16 cases it appears in fact that it was the existence of an alternative suspect—typically identified by defense investigators and further investigated by prosecutors—that led to the vacatur and dismissal of charges.

In an additional case, a new suspect pleaded guilty to the crime a year after the exoneration.

As to why no new charges were filed in the murder cases connected to 93% of these wrongful convictions, the answer often depends on who is offering the explanation. Prosecutors, cops and defense attorneys often tend to see things very differently.

That said, I was able to ascertain that the true perpetrators—determined either by credible confessions and/or objective evidence—of murders connected to an additional 24 of these wrongful convictions are either dead or in prison, serving a long sentence for a different crime, sometimes in another state.

While neither outcome represents justice for the victims in the wrongful conviction cases, those murderers are nonetheless “off the streets.”

I also discovered that with respect to murders for which an additional eight people were wrongfully convicted, the true perpetrators appear to be beyond the reach of law enforcement because of immunity or plea deals given to them by prosecutors (these cases tended to involve violence perpetrated by gangs).

In addition, I identified seven cases (and four of the cases in which a defendant was retried and acquitted), in which the person who was wrongfully convicted was convicted along with at least one or more others who, it seems fairly clear, were actually responsible.

While there is reason to believe that in some of these cases not everyone involved was apprehended, someone has been held accountable for these killings.

Then there are the 10 cases in which the underlying crimes were committed so long ago, and the original prosecutions so flawed, that law enforcement seems reasonably to have abandoned any hope of being able to conduct a productive reinvestigation.

This is in contrast to an additional 24 cases I was told by prosecutors were either the subject of an “ongoing investigation” or “open,” though what that means (does open mean active? Are the ongoing investigations targeting new suspects or the original defendant?) remains unclear, as all refused to elaborate. About an additional 48 cases, prosecutors elected to say nothing.

I did learn that 17 people whose convictions were vacated are viewed as actually innocent by the district attorney currently leading the office that originally prosecuted the case (in some instances, a predecessor did not share that view), but it appears that law enforcement lacks any meaningful leads regarding the true culprit. In these cases, both time passed and limited resources appear to be major obstacles to developing such leads.

That leaves 61 cases about which prosecutors or their spokespeople offered statements attributing the lack of new charges in a case to the “erosion” or “insufficiency” of evidence to re-prosecute the original defendant, thus implying that there is no other possible suspect.

In some of these cases, prosecutors stated outright that they believe the wrongfully convicted person to be guilty. I discovered, however, that in just over a third of these cases—like in numerous other cases that prosecutors declined to comment on—there seems to be credible evidence pointing to a different suspect altogether.

Freeing Marty Tankleff

Take the case of Marty Tankleff, who was convicted in 1990 of murdering his parents in their Long Island, N.Y. home and spent 17 years behind bars before his conviction was vacated by an appellate court.

According to Lonnie Soury, a media expert who worked closely with Tankleff’s appellate team, including private investigator Jay Salpeter, “in the effort to free [Marty], we conducted a major reinvestigation of the case that produced significant new evidence that three men committed the murder at the behest of Mr. Tankleff’s father’s business partner.”

Soury says that “the new evidence was turned over to [Suffolk County District Attorney] Thomas Spota,” who “did nothing with [it] other than continue to oppose Tankleff’s bid to overturn his conviction.”

After the Court vacated the conviction, Spota requested that it formally dismiss the charges against Tankleff,  saying that his office could not “reasonably assert that a new prosecution would be successful.” He also said he would ask then-Governor Eliot Spitzer to appoint a special prosecutor to reinvestigate the case.

Asked by e-mail whether Spota’s office had ever looked into these other suspects, a spokesman failed to answer the question, noting instead that then AG-Andrew Cuomo “conducted an investigation” after the DA “requested the Governor appoint a special prosecutor to resolve any residual doubts with respect to the potential prosecution of other individuals the defense claims participated in these murders.”

For reference, the spokesman attached to the e-mail an excerpt from the judge’s decision to dismiss the indictment following Cuomo’s review. That excerpt, however, did not mention that Cuomo—who Soury says [was] given the information developed by Tankleff’s appellate team—had investigated any other suspects and stated only that the “Attorney General’s office… determined that there should not be a reprosecution of defendant.”

For his part, Soury cannot say for certain why the DA failed to take action with regard to these other suspects, three of whom, he says, continue to live “freely and with impunity” in Suffolk County, but adds that “some evidence exists that the leader of the group was a confidential informant to the DA’s office” and that others may have had political connections that protected them from prosecution.

Indeed, in late 2015 federal investigators began looking into allegations of corruption involving the Suffolk County Police Department and Spota’s office. This came on the heels of a 2013 federal probe that led the Suffolk County police chief to plead guilty to federal civil rights and obstruction of justice charges.

But even absent the spectre of outright corruption, experts argue, there is generally little incentive for a prosecutor to reopen a case after a conviction has been overturned.

“To charge a different suspect in the crime is as clear an admission of initial wrongdoing as it’s possible to make,” says veteran defense and civil rights attorney Ron Kuby, who has represented numerous wrongfully convicted people.

“And prosecutors will [admit wrongdoing] only when they are absolutely forced to do so, by a court. And even then, they may acknowledge that there was misconduct, or that the evidence was insufficient or tainted, but rarely do they say, ‘we had the wrong guy and let the actual killer free X number of years.’ It makes them look really bad.”

Getting a prosecutor to go beyond an admission that mistakes may have been made to even consider a defendant’s actual innocence, let alone investigate other suspects, also can be an uphill battle, says Kuby, because prosecutors—like their counterparts on the defense side—tend to become deeply invested in their narrative of the crime.

And, he believes, many also become invested in a view of themselves as being “unfairly tarnished” by “shady defense attorneys” and “soft courts,” which makes it easier to justify inaction.

“It is easier to insist that you’re right and the defense lawyers and the judges were wrong because you don’t have to do any work… [and] can indulge in both self-pity and laziness. It’s a lot easier than going out and finding the actual killer.”

But even in instances where a prosecutor may be inclined to revisit a case, without unimpeachable evidence implicating the new suspect, mounting a successful new prosecution presents challenges.

According to Benjamin Schneider, a former Assistant District Attorney in Brooklyn, a vacated conviction “may doom a subsequent prosecution for the same offense, because the second defendant will offer the prosecution’s old, discredited evidence—and the fact of someone else’s conviction—to raise doubt about his own guilt.”

The prosecutor “will want to counter that,” Schneider says, by “arguing that reasonable doubt has not been raised by the old evidence, because the old evidence was tainted and the first defendant was set free after years in prison. But the jury will learn that this prosecutor’s office put an innocent person in prison, for this very crime, by using tainted evidence”—not exactly a ringing endorsement of the prosecutor’s credibility on the case.

All of this goes a long way toward explaining why, even when there is much to indicate the original defendant’s innocence and someone else’s guilt, new charges are brought so infrequently in the wake of a vacated conviction.

Where that leaves the loved ones of the victim, not to mention the public at large—which has an obvious stake in seeing the right people held accountable for violent crimes—is another question.

In the case of Emma Crapser’s murder, because the crime itself happened so long ago and Crapser was an elderly, childless woman, it has proved difficult to find anyone who might be an advocate for her today.

Indeed, the nephew who discovered the King sisters after their brutal assault by the same people who may well have been involved in Crapser’s murder months before, died in 1995, at the age of 74.

Of course, there is no guarantee Crapser’s relatives even would believe that Bozella was innocent or, if so, push to get the case reopened.

As Kuby notes, often “these families have at least grown accustomed to thinking the guilty person has been punished,” particularly when the DA’s office “continues to insist that they got the right person.”

It is not unusual, he says, for “the victim’s family and the DA’s office to engage in this synergy of denial that satisfies both their interests.”

But what about the interests of the communities where these crimes occurred?

By definition, those interests are supposed to be represented by the district attorney, the very same entity that, for whatever reasons, botched the case the first time around, quite possibly leaving the community more, rather than less, vulnerable to violence.

In such cases it is typically the DA’s more narrow interests—whether in avoiding revelations of incompetence or wrongdoing; prosecuting only cases they think they can win, or merely curbing the expansion of an already heavy workload—that win out.

And in the absence of a truly neutral body tasked with re-investigating these crimes, we may never learn who killed Emma Crapser, let alone be able to hold the right person accountable for her death—-or those of the many other murder victims whose cases, regardless of their legal status, remain in a kind of limbo in the real world, beyond the courthouse doors.

This is a condensed and slightly edited version of a story  published July 2 in the Daily Beast. Please click here for the complete version.  The reporting was supported by a grant from the Fund for Investigative Journalism. Additional support was provided by Hin Hon (Jamie) Wong through the Schuster Institute for Investigative Journalism, as well as a John Jay/Quattrone Fellowship in Criminal Justice Reporting. Readers’ comments are welcome.

from https://thecrimereport.org

Critics Seek Judge’s Recall in CA Rape Sentence

Judge Aaron Persky was widely criticized for a six-month jail term he issued to Stanford swimmer Brock Turner for assaulting an unconscious woman at a fraternity party.

Critics of Aaron Persky, the California judge who found himself at the center of a nationwide furor last year over campus rape, have started the long process of trying to unseat him, reports The Recorder. Led by Stanford University law professor Michele Dauber, a group of 50 that includes local politicians, progressive activists and Silicon Valley engineers submitted a notice of intent to circulate a recall petition yesterday to the Santa Clara County Registrar of Voters.

The notice says Persky “stunned the world when he sentenced Stanford swimmer Brock Turner to six months in jail for sexually assaulting an unconscious woman behind a dumpster at a fraternity party.” The notice says “Santa Clara County residents deserve a judge who will protect victims—not rapists.” Persky has seven days to file a response. Persky sentenced Turner to six months in jail for sexual assault crimes; the district attorney had sought six years. A statement by Turner’s victim, “Emily Doe,” quickly went viral and fueled an outpouring of criticism against the judge. Turner was released last September for good behavior.  The same month, after reports of other controversial sentencing decisions involving sex crimes and assault against women, Persky requested to be reassigned to a civil court.


from https://thecrimereport.org

Appeals Court Lifts Injunction Against MS Anti-Gay Law

The 2016 Mississippi law, the Protecting Freedom of Conscience from Government Discrimination Act, is considered the most aggressive of several state-level conservative responses to the U.S. Supreme Court’s legalization of same-sex marriage in 2015. The law likely will remain blocked for the time being during the appeals process.

A federal appeals court on Thursday lifted an injunction on a Mississippi law that grants private individuals and government workers far-reaching abilities to discriminate against lesbian, gay, bisexual and transgender people on religious grounds, reports the New York Times. Lawyers said the law was likely to remain blocked for the time being during the appeals process. The decision by a three-judge panel of the Fifth Circuit Court of Appeals is part of a legal drama being closely watched by gay-rights advocates and religious conservatives. The state law, titled the Protecting Freedom of Conscience from Government Discrimination Act, was signed in April 2016 by Gov. Phil Bryant. It is considered the most aggressive of several state-level conservative responses to the U.S. Supreme Court’s legalization of same-sex marriage in 2015.

According to a legal analysis by Columbia University, the Mississippi law would allow government clerks to opt out of certifying same-sex marriages (though only if the marriage is not “impeded or delayed” by their decision) and allow businesses to deny wedding-related services to same-sex couples if their marriage contravened “a sincerely held religious belief or moral conviction.” It would allow religious organizations to engage in job and housing discrimination against L.G.B.T. people; allow public school counselors to refuse to work with L.G.B.T. students; and potentially force child-welfare agencies to place L.G.B.T. children with anti-gay foster or adoptive parents.

from https://thecrimereport.org

WI High Court Draws Curtain on More Public Meetings

Wisconsin justices voted 5-2 to close the doors on its administrative meetings, with the conservative majority outvoting the two liberal members.

The Wisconsin Supreme Court has voted to keep more of its deliberations behind closed doors, reports the Milwaukee Journal Sentinel. The decision – on a 5-2 vote – came amid conservative vs. liberal acrimony that has marked the court in recent years. The Wisconsin Supreme Court, like other courts, has always conducted its arguments on cases in public and its deliberations about those cases behind closed doors. But in 1999, the court became one of the first state high courts to hold its administrative meetings before the public. At the meetings, shown live in recent years on public TV, justices discussed issues both meaty and mundane, many of them pertaining to court policies.

Five years ago, the court voted to curtail its public meetings. Since then, deliberations have been held publicly only when the court discussed proposed changes to its formal rules. For instance, the justices in April debated in public whether they should tighten court rules that dictate when judges must step aside from cases involving people or groups who spent money in their elections. The court rejected the rule changes, 5-2, with the court’s five conservative justices outvoting the two liberals. The same majority voted last week to stop holding such discussions in public.

from https://thecrimereport.org

The Dangers of Secret Law

Last week, the Department of Justice released 18 new FISC opinions related to Section 702 as part of an EFF FOIA lawsuit. (Of course, they don’t mention EFF or the lawsuit. They make it sound as if it was their idea.) There’s probably a lot in these opinions. In one Kafkaesque ruling, a defendant was denied access to the previous…

Last week, the Department of Justice released 18 new FISC opinions related to Section 702 as part of an EFF FOIA lawsuit. (Of course, they don't mention EFF or the lawsuit. They make it sound as if it was their idea.)

There's probably a lot in these opinions. In one Kafkaesque ruling, a defendant was denied access to the previous court rulings that were used by the court to decide against it:

...in 2014, the Foreign Intelligence Surveillance Court (FISC) rejected a service provider's request to obtain other FISC opinions that government attorneys had cited and relied on in court filings seeking to compel the provider's cooperation.


The provider's request came up amid legal briefing by both it and the DOJ concerning its challenge to a 702 order. After the DOJ cited two earlier FISC opinions that were not public at the time -- one from 2014 and another from 2008­ -- the provider asked the court for access to those rulings.

The provider argued that without being able to review the previous FISC rulings, it could not fully understand the court's earlier decisions, much less effectively respond to DOJ's argument. The provider also argued that because attorneys with Top Secret security clearances represented it, they could review the rulings without posing a risk to national security.

The court disagreed in several respects. It found that the court's rules and Section 702 prohibited the documents release. It also rejected the provider's claim that the Constitution's Due Process Clause entitled it to the documents.

This kind of government secrecy is toxic to democracy. National security is important, but we will not survive if we become a country of secret court orders based on secret interpretations of secret law.

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

Flint Water Prosecutions Are Rare–and Challenging

The decision to prosecute five Michigan officials in connection with Flint water crisis deaths is virtually unheard of in modern American history. But what are the chances of convictions?

The decision to charge five top Michigan officials with involuntary manslaughter for a death resulting from the Flint water crisis is virtually unheard of in modern American history, reports ProPublica. Legal experts can’t cite a single case in which government officials were charged in a citizen’s death because they knew about a problem but failed to warn the public. The Michigan criminal case is related to a water contamination-related outbreak of Legionnaires’ disease that killed a dozen people. An involuntary manslaughter conviction in Michigan carries a potential sentence of up to 15 years in prison and a $7,500 fine.

But how likely is it that anyone in this case will see any jail time? It’s more common to find cases internationally where government officials were convicted in deaths resulting from disasters, said Denis Binder, a Chapman University law professor. During the past decade, an Italian official was convicted of manslaughter and for downplaying the risks shortly before an earthquake killed more than 300 people, and a mayor in western France was convicted of manslaughter related to flooding that killed 29 residents. Both got suspended sentences. After consulting with experts, news archives and academic reviews, ProPublica found that convictions from disaster-related deaths in the U.S. tend to hinge on a more direct line of responsibility, such as a Staten Island Ferry captain involved in a fatal crash in 2003.

from https://thecrimereport.org

Hung Juries In Two Big Cases This Week Would Be Rare Event

Judge in both the Bill Cosby sexual assault trial and a police shooting case in Minnesota ordered new deliberations for a fifth day. Hung juries happen in only a tiny percent of trials.

Two juries deliberating high profile criminal trials this week appeared unable to reach agreement on a verdict. Judges sent the jurors in both cases back to continue deliberations, NPR reports. In Pennsylvania, four days after getting the case, the jury considering sexual assault charges against Bill Cosby said they couldn’t reach a unanimous decision on any of the three counts against the 79-year-old comedian. Jurors began a fifth day of talks today. In Minnesota, the jury considering the fate of a police officer charged in the shooting death of a black motorist, Philando Castile, finished its fourth day of deliberations yesterday.

With these two cases seemingly teetering on the brink of hung juries, you might think it happens quite often. Hung juries are actually rare, happening about 5 to 6 percent of the time in state criminal trials, and about 3 percent of the time in federal criminal trials, says Cornell law Prof. Valerie Hans. “It’s not uncommon for a jury to be deadlocked at first but then to reach a verdict after some prodding from the judge,” says Larry Cunningham of St. John’s Law School in New York, and a former prosecutor. To break a deadlock, judges can deliver what is known as an “Allen” (after Allen v. United States, an 1896 Supreme Court case) or “dynamite” charge. “The judge instructs the jurors that they should each reexamine their beliefs, go over the evidence, listen to the opinions of others, and understand that if a mistrial is declared, another jury will have to be empaneled to hear the same evidence — all at considerable expense,” Cunningham says. As to why juries deadlock, Hans says “the number-one reason we have found from research is the evidence being closely balanced.”

from https://thecrimereport.org

Offender Recidivism: What Works-What’s Hogwash

Subtitle We may be making progress as to reducing recidivism in the United States. Author Leonard Adam Sipes, Jr. Thirty-five years of speaking for national and state criminal justice agencies. Former Senior Specialist for Crime Prevention for the Department of Justice’s clearinghouse. Former Director of Information Services, National Crime Prevention Council. Post-Masters’ Certificate of Advanced […]

Subtitle We may be making progress as to reducing recidivism in the United States. Author Leonard Adam Sipes, Jr. Thirty-five years of speaking for national and state criminal justice agencies. Former Senior Specialist for Crime Prevention for the Department of Justice’s clearinghouse. Former Director of Information Services, National Crime Prevention Council. Post-Masters’ Certificate of Advanced […]

from http://www.crimeinamerica.net