Mobile Phone Case Tops High Court Criminal Docket

On the docket for the Supreme Court term beginning Oct. 2 is Carpenter v. United States, which tests whether law enforcement can obtain any digital information without a warrant. Major “crimmigration” and habeas corpus cases also are scheduled.

A relatively calm U.S. Supreme Court term will soon give way to what court watchers say could be a stormy one when the justices take the bench Oct. 2. Among the pivotal criminal law issues in the 2017 term are the balance between surveillance and privacy in the mobile phone era, the treatment of immigrants who break the nation’s laws, and whether death-row inmates can challenge legal errors they claim are grave enough to save them, reports Bloomberg BNA. Carpenter v. United States headlines the criminal cases so far. There, the high court “will likely decide whether the government can obtain any digital information exposed to a third party service provider without a warrant,” says University of Utah law Prof. Matthew Tokson. The issue is whether the Fourth Amendment demands a warrant for historical mobile phone location records, which placed Timothy Carpenter near the scene of several armed robberies. Law enforcement got the data from Carpenter’s wireless carrier with a court order under the Stored Communications Act, rather than with a probable cause warrant, which would have required more proof.

Carpenter isn’t scheduled for argument yet. The term’s first two days feature re-arguments in two important “crimmigration” cases—at the intersection of criminal and immigration law. Both cases involve people facing deportation. Sessions v. Dimaya deals with scrutinizing the vagueness of a law whose violation leads to removal, while Jennings v. Rodriguez involves with the right to bond hearings for non-citizens facing removal. the justices also will hear two “hugely important” habeas corpus issues, says University of California Irvine law Prof. Leahh Litman. She cied Avestas v. Davis and Wilson v. Sellers, cases brought by death row inmates seeking to clear procedural hurdles to challenge their convictions.

from https://thecrimereport.org

What the NSA Collects via 702

New York Times reporter Charlie Savage writes about some bad statistics we’re all using: Among surveillance legal policy specialists, it is common to cite a set of statistics from an October 2011 opinion by Judge John Bates, then of the FISA Court, about the volume of internet communications the National Security Agency was collecting under the FISA Amendments Act ("Section…

New York Times reporter Charlie Savage writes about some bad statistics we're all using:

Among surveillance legal policy specialists, it is common to cite a set of statistics from an October 2011 opinion by Judge John Bates, then of the FISA Court, about the volume of internet communications the National Security Agency was collecting under the FISA Amendments Act ("Section 702") warrantless surveillance program. In his opinion, declassified in August 2013, Judge Bates wrote that the NSA was collecting more than 250 million internet communications a year, of which 91 percent came from its Prism system (which collects stored e-mails from providers like Gmail) and 9 percent came from its upstream system (which collects transmitted messages from network operators like AT&T).

These numbers are wrong. This blog post will address, first, the widespread nature of this misunderstanding; second, how I came to FOIA certain documents trying to figure out whether the numbers really added up; third, what those documents show; and fourth, what I further learned in talking to an intelligence official. This is far too dense and weedy for a New York Times article, but should hopefully be of some interest to specialists.

Worth reading for the details.

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

Why Has It Taken a Decade For AL Death Penalty Trial?

Kharon Davis was 22 when he was charged with capital murder and jailed in Alabama. Ten years later, he is still there, awaiting a trial that began Monday. He has had two judges, four teams of lawyers and nine trial dates, the first of which was in 2008. It defies any understanding of the right to a speedy trial, says the New York Times.

Kharon Davis was 22 when he was charged with capital murder and jailed in Alabama. Ten years later, he is still there, awaiting a trial that began Monday. He has had two judges, four teams of lawyers and nine trial dates, the first of which was in 2008. His case has outlasted a district attorney who served for nearly three decades. It defies any understanding of the right to a speedy trial, says the New York Times. As the case has languished, Davis, whose only prior offense was driving without a license, has been segregated from the jail’s general population for various transgressions. His mother, Chrycynthia Davis, has been allowed to visit him just once in the last three years. Davis has already served half of the minimum sentence for murder.

The case illustrates how the justice system can founder at many levels, especially for poor defendants. It exposes the loopholes in the constitutional protections that are supposed to ensure that both the victims and the accused receive timely justice. In capital murder cases, it is not unusual to spend two or three years behind bars awaiting trial. A decade is extreme. Davis’s case has suffered from misplaced evidence, conflicts of interest, and restrictions on his ability to review his own legal documents. His lawyers and prosecutors share the blame for the delay, as does Davis himself. At a hearing last year, he insisted on replacing his second team of court-appointed lawyers, saying he did not trust them, even though the judge warned that doing so would further delay his trial. “It is impossible to look at it,” said Jonathan Turley, a constitutional law expert at George Washington University, “and not find it deeply, deeply troubling.” Davis maintains he is innocent and has declined offers of a plea deal.

from https://thecrimereport.org

Can Alternatives to Money Bail Work?

A New York City experiment that used partially secured and unsecured bonds suggests that these are viable alternatives to a system that puts thousands of individuals behind bars awaiting trial because they can’t afford to make bail, according to a report issued Friday by the Vera Institute of Justice.

A New York City experiment suggests that bail methods which do not require paying large sums of money are a viable alternative to a system that is often skewed against the poor.

A report released Friday by the Vera Institute of Justice found that “partially secured and unsecured” bonds could be as effective in guaranteeing a person’s appearance at trial as traditional cash bail requirements that place an onerous burden on most defendants’ resources─often ensuring that low-income individuals are held in detention.

“The findings tell an important story about the possibility of culture change in the use of bail in (New York City) criminal courts, and demonstrate the potential of alternative forms of bail to serve as one more tool to make the current bail system fairer,” said Insha Rahman, a senior planner at Vera and author of the report.

Rahman traced the outcome of 99 cases over six to nine months where defendants were allowed to pay a refundable 10 percent or less of the bail amount set by judges (partially secured bonds) or no upfront payment at all. Judges and defense attorneys were trained on the paperwork involved.

The alternative bail experiment was applied to criminal as well as civil cases.

According to the findings, individuals released under the two bond procedures had an appearance rate of 88 percent, and a rate of pretrial re-arrest for new felony offenses of just 8 per cent.

And pretrial release also resulted in a resolution of the cases that involved a less serious charge than applied at the initial arraignment.

One-third of the cases ended in dismissal altogether, and another 20 percent ended in a non-criminal conviction.

The report acknowledged that the experiment affected only a miniscule number of the estimated 7,000 New Yorkers are jailed awaiting trial every day, usually for lack of resources to make bail.

New York Judges have at least nine different forms of bail they can require to guarantee an individual’s appearance in court, but according to the study, “by default” most choose the two forms that are the most financially burdensome: payment of a full cash amount or a nonrefundable 10 percent deposit to a bail-bond company.

The report said the procedure for issuing these alternative bail bonds needed to be simplified, and judges needed to be educated about their potential for.

Before issuing the alternative bonds, the city’s Office of Court Administration requires at least one person paying to agree to sign paperwork and swear under oath to be liable. That person must be able to demonstrate that he or she has a source of income and will pay the full amount if bail is forfeited.

“Expanding the use of alternative forms of bail will offer more New Yorkers the opportunity to await trial without the harm to employment, housing, family and overall stability that comes from pretrial detention, “said the report.

A full copy of the report is available here.

from https://thecrimereport.org

Forensic Fraud and the ‘Insidious’ Culture of U.S. Courtrooms

Flawed forensic evidence is a key reason for many wrongful convictions in criminal cases. Setting rigorous standards for judges and prosecutors to follow in pretrial discovery would reduce its use, argues a study published in the Northwestern University Law Review.

Rigorous rules for pretrial discovery in criminal cases will curb the use of flawed forensic science, and reduce the wrongful convictions arising from the “insidious” prosecutor-dominated culture of American courtrooms, argues a study published in the Northwestern University Law Review.

Criminal justice proceedings, unlike civil and tort trials, too often rely on questionable forensic evidence that is rarely challenged by judges or prosecutors, according to the study.

The study authors suggest the root of the problem is not necessarily individual misconduct by court officers, but the lack of consistent rules that govern the presentation of critical forensic evidence before trial.

“Systems-level procedural problems…all too often contribute to the admission of flawed forensics in criminal proceedings,” the study says.

The study added: “These dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are ‘repeat players’ in criminal litigation and, as such, routinely support reduced pretrial protections for defendants.”

The study, entitled “Discovering Forensic Fraud,” was written by Jennifer D. Oliva, Associate Professor of Law and Public Health at West Virginia University; and Valena E. Beety, Associate Professor of Law at West Virginia University College of Law.

Pretrial discovery and disclosure rules similar to those used in civil cases could “halt the flood of faulty forensic evidence routinely admitted against defendants in criminal prosecutions,” the authors claimed.

The study focused on forensic odontology—the study of bite marks—which both the American Board of Forensic Odontology (ABFO) and the White House Office of Science and Technology Policy (OSTP concluded in 2015 were an “unreliable forensic discipline.”

But, the study noted, “shockingly, courts continue to admit bite mark evidence in criminal trials and do so virtually exclusively on the bases of precedent.”

Several states have already begun to adopt more rigorous rules. Texas, North Carolina and West Virginia, for example, strengthened their criminal discovery standards following disclosures of wrongful convictions.

In 2014, Texas passed the Michael Morton Act, requiring full open-file discovery of favorable evidence after the prosecution receives a request. The Act was named after a man who was found to have been wrongfully convicted of his wife’s murder after his prosecutor—who later became a judge—hid exculpatory evidence.

The study called on other judicial systems around the country to follow suit.

“Such leveling of the playing field may return integrity to prosecutors’ offices and restore trust in our criminal adjudications,” the authors said.

This study was prepared by TCR news intern Julia Pagnamenta. She welcomes readers’ comments.

from https://thecrimereport.org

Ferguson Drops Charges Against Man Held at Gunpoint

The city dismissed the five-year-old case against Fred Watson, who was featured in a Justice Department report that criticized the city for targeting African Americans and making unconstitutional arrests.

Fred Watson of Ferguson, Mo., won a small victory in a long battle, the St. Louis Post-Dispatch reports. More than five years have passed since the Navy veteran was held at gunpoint by a Ferguson police officer before being arrested, having his car towed and being jailed.

More than two years have passed since Watson was featured, without being named, in a Justice Department report that blasted police in Ferguson for targeting African Americans, making unconstitutional stops and arrests, and treating the city’s police and court system like an ATM. On Monday, all nine municipal charges against Watson were dropped.

The Ferguson prosecutor did not notify Watson or his lawyers with the nonprofit ArchCity Defenders law firm, and offered no explanation. Prosecutor Lee Clayton Goodman told the Post-Dispatch that Watson’s case fell within the guidelines set out in Ferguson’s consent decree with the Justice Department, in which the city agreed to dismiss certain municipal court cases.

After being charged, Watson lost his security clearance, then his six-figure job with the National Geospatial-Intelligence Agency. The $58,000 he had saved for his first two years of law school has been spent on food and other daily expenses. Watson said he has battled depression and is broke. He has been living out of storage units and sleeping in basements and the back seat of his car. Still pending is a federal lawsuit Watson filed against Officer Eddie Boyd III and Ferguson.

from https://thecrimereport.org

Judge Dismisses Case Against Engineer in Fatal Crash

“I think it’s more likely than not this was an accident and not criminal,” says Philadelphia Judge Thomas Gehret in tossing the criminal case against Amtrak engineer Brandon Bostian. Eight people died and 100 were injured in 2015 in a derailment after Bostian’s train was traveling 106 miles per hour.

The prosecution against engineer Brandon Bostian, who derailed an Amtrak train two years ago in Philadelphia, ended in stunning fashion when a judge ruled there was not enough evidence to warrant a criminal trial, reports Philly.com. Municipal Court Judge Thomas Gehret dismissed all counts after a hearing that centered on what responsibility the engineer should bear for eight deaths and more than 100 injuries caused by the May 12, 2015, accident. “Based on that evidence,” Gehret said, “I think it’s more likely than not this was an accident and not criminal.” Bostian had been charged with eight counts of involuntary manslaughter, one count of causing or risking a catastrophe, and 238 counts of reckless endangerment.

Bostian’s attorney, Brian McMonagle, argued that he had committed a mistake, not a crime. “It’s a horrible tragedy, but the law recognizes there’s a big difference between an accident and a crime,” McMonagle said. The Pennsylvania Attorney General’s office declined to say whether it would seek other ways to charge Bostian. State prosecutors brought a manslaughter case against Bostian after the Philadelphia District Attorney declined to press charges just days before a statute of limitations expired on the reckless endangerment charge. Bostian drove the seven-car train that had accelerated to 106 mph — more than twice the speed posted — as it approached a curve, according to the National Transportation Safety Board. The federal investigation concluded that Bostian had no alcohol or drugs in his system and was not using his cellphone at the time of the derailment. Bostian told the NTSB he did not remember what had happened. The federal agency concluded that he lost “situational awareness,” probably because of radio chatter about a rock hitting a local train near the curve shortly before the derailment.

from https://thecrimereport.org

Why Prosecutors ‘Rule’ the Justice System—and How to Fix It

Federal Judge Jed S. Rakoff says the use—and abuse—of plea bargaining gives prosecutors more power than judges to affect justice outcomes. In a forthcoming Northwestern University Law Journal essay, he proposes one way to “temper” their powers.

A federal judge says federal and state prosecutors should be required to spend six months out of every three years of their term serving as defense counsel for indigent defendants.

Jed S. Rakoff, a senior U.S. District Judge for the Southern District of New York and a prominent advocate of justice reform, argues that his proposal will help raise prosecutors’ awareness of the need to “temper” their powers with greater sensitivity.

The proposal, he says, borrows from a practice permitted in the United Kingdom, where there is a requirement for prosecutors to occasionally serve as defense counsel.

Writing in the forthcoming November 2017 edition of the Northwestern University Law Journal, in an essay entitled “Why Prosecutors Rule the U.S. Justice System–and What Can Be Done About It,” Rakoff described his idea as a way of curbing the use of plea bargaining in the U.S. justice system—a practice which has not only given prosecutors more power than judges to determine justice outcomes, but has led to miscarriages of justice.

“I can think of no other step more likely to make prosecutors aware of the great power they possess or the need to temper it with other considerations,” Rakoff said in the essay, which was adapted from a speech he delivered at the Northwestern University Pritzker School of Law on November 18, 2016.

The judge said that his proposed temporary switch of roles would need to be approved by defendants and legal aid offices, and potential conflicts of interest could be avoided if a prosecutor in one locale served his or her time as defense counsel in another locale.

Rakoff, a one-time federal prosecutor who has been one of the country’s foremost advocates of reducing mass incarceration, said judicial discretion in sentencing has been sharply reduced since Congress and state legislators began passing mandatory minimum-maximum sentencing guidelines, in response to the country’s rising crime rates in the 1980s.

As a result, defendants are now more likely to accept a plea offer by a prosecutor instead of going to trial, in order to avoid a conviction that might land them with lengthy prison terms. Rakoff cited figures showing that in 2015 only 2.9% of all federal defendants went to trial, compared to roughly 15% in the 1970s and 1980s—even though crime rates have been on a steady decline since the turn of the century.

In his essay, Rakoff admitted a more direct solution would be to abolish plea bargaining or the mandatory-minimum guidelines.

But, he added, this “appears unlikely to command the support of the new federal administration or of the many state legislatures whose members know that it is still good politics to be ‘tough on crime.’”

Rakoff conceded that even his more modest proposal had little chance of being accepted, even though no new legislation would be needed to impose it,

For example, it was likely to be opposed by public defenders, he said.

“Many legal aid offices, for reasons that will not bear scrutiny, will never hire former prosecutors as legal aid lawyers, even though the reverse is not true,” he wrote.

And he noted that he had once made a proposal along similar lines as long ago as 1976 to then-U.S. Attorney General Edward H. Levi, who “shot it down.”

All the same, he said, continuing with the current plea bargaining system should concern every American.

Unless the system is changed, he said, “for the immediate future at least, prosecutors, rather than judges, will be the real rulers of the American criminal justice system. And I ask you: is that fair?”

A full copy of Judge Rakoff’s essay is available online.

This summary was prepared by TCR intern Brian Edsall. Readers’ comments are welcome.

from https://thecrimereport.org

Why is Ferguson Prosecuting Black Man on Minor Charges?

The city where Michael Brown was killed by a police officer continues to charge a black man in a five-year old case stemming from his sitting in his car in a park.

A 2012 episode in Ferguson, Mo., along with the later police killing of Michael Brown, helped prompt a federal consent decree with the Justice Department. Fred Watson, a black man, was sitting in his car in a park when a police officer drew his gun on him. The officer searched the car without permission and wrote more than half a dozen tickets, including for lacking a vehicle inspection sticker and not wearing a seatbelt, even though the car was parked. Five years later, Ferguson continues to prosecute Watson, even as it struggles to repair its image as a city that has been unfair toward African Americans, the New York Times reports.

Watson is due in court on Tuesday for a criminal trial on nine minor charges stemming from the episode. “When does it stop?” asked Watson, 37. “This goes way beyond me. This practice has got to stop.” The continued prosecution has raised questions about how serious Ferguson is about reform. The Brown death brought scrutiny not only on the frequency of police officers’ use of force against unarmed African Americans, but also on Ferguson’s municipal court system and the practice, nationwide, of employing courts to bring in revenue through fines and fees. Ferguson officials would not discuss the Watson case, but they said the city is well on its way to change, particularly in its municipal court system  Since August 2014, the city has dismissed 39,000 municipal court cases, forgiven $1.8 million in fines, and enrolled 1,381 people in community service projects instead of requiring them to pay fines. Since Brown’t death of Mr. Brown, the city has replaced its police chief, municipal judge, prosecutor and city manager.

from https://thecrimereport.org

Can We Cut Probation Caseloads by 50 Percent?

Observations So the bottom line is that we can “manage” the probation population by limiting interactions. But unlike the advocates, I’m not going to tell you that it’s without a risk to public safety. The bottom line is that people caught up in criminal activity tend to continue their offending. The American criminal justice system […]

Observations So the bottom line is that we can “manage” the probation population by limiting interactions. But unlike the advocates, I’m not going to tell you that it’s without a risk to public safety. The bottom line is that people caught up in criminal activity tend to continue their offending. The American criminal justice system […]

from https://www.crimeinamerica.net