Observations Is Project Exile Donald Trump’s and Jeff Sessions’ primary anti-violence effort? Launched in 1997 by the U.S. Attorney’s Office, homicides in Richmond exhibited a 22 percent yearly decline, compared with the average reduction of about 10 percent per year for other large U.S. cities. Author Leonard A. Sipes, Jr. Thirty-five years of speaking for […]
Colorado lawyers specializing in drunken-driving cases are questioning the validity of thousands of convictions after a technician who certified the state’s breath-test machines said his signature was forged on more than 100 records in 2013, the Denver Post reports.
Colorado lawyers specializing in drunken-driving cases are questioning the validity of thousands of convictions after a technician who certified the state’s breath-test machines said his signature was forged on more than 100 records in 2013, the Denver Post reports. In addition, a former laboratory director’s signature is still being used on certificates more than a year after she left the Colorado Department of Public Health and Environment in July 2015. Those certificates are being used in DUI trials to prove machines were recording accurate blood-alcohol content. “This is the lab we’re asking to go into court and testify to the veracity of their machines,” said Darren Cantor, president of the Colorado Criminal Defense Bar. “It really makes me question whether the [state] capable of doing that.”
Gov. John Hickenlooper rejected a call from the defense bar for an independent investigation into the certification process used for every breath test machine in the state. The governor’s legal counsel said a thorough review already has been done, and no evidence of misconduct was found. The certifications are important to DUI suspects and their attorneys because prosecutors, judges and juries rely heavily on the results of alcohol breath tests when weighing verdicts and punishments. Under state law, no expert is required to testify about a breath-test machine’s accuracy, so the certificates are the sole proof used in a trial to show that a machine is working properly. “These are the machines prosecutors are using to convict people in court,” said Sarah Schielke of the Life and Liberty Law Office. “They say they are scientific and reliable.”
The county tests evidence seized from drug defendants even after they enter guilty pleas. When the supposed drugs they possessed were tested, in many cases no illegal drugs were found. Study also finds that innocent black people are about 12 times more likely to be convicted of drug crimes than are innocent white people.
A new study has found that Harris County, Tx., leads the U.S. in exonerations, turning loose 48 people last year alone. That’s because its crime labs take an added precaution most others don’t: testing evidence seized from drug defendants even after they enter guilty pleas, the Texas Tribune reports. When the supposed drugs they possessed were tested, in many cases no illegal drugs were found. A study issued yesterday by the National Registry of Exonerations said Harris County had all but 10 of the state’s 58 exonerations last year. The state with the second highest number, Illinois, had 16 exonerations in 2016.
Harris County District Attorney Kim Ogg isn’t ashamed of the high number. Ogg said her department takes extra precautions “to ensure the integrity of our convictions,” a move she hopes more crime labs across the nation will follow. Most of those convicted and later exonerated for drug-related offenses in Harris County were African American. The researchers found that African Americans are five times as likely to go to prison for drug possession as whites. Judging from exonerations, innocent black people are about 12 times more likely to be convicted of drug crimes than are innocent white people. “Harris County is extremely valuable for our research because it’s an unusual example of something you wouldn’t otherwise see,” said University of Michigan law Prof. Samuel Gross, senior editor of the study. “One possibility is that they’re more conscientious. What’s striking is that they do this.” He said the rate of illegal drug use is roughly the same for whites and blacks, but the number of arrests and convictions is much higher for African Americans than for whites. The study also found that African American prisoners who were convicted of murder are about 50 percent more likely to be innocent than other convicted murderers.
Retired Federal Judge Schira Scheindlin has said mandatory-minimum requirements made her feel “dirty.” Other judges have joined the chorus of justice reformers who complain rigorous sentencing guidelines are unfair. But are they addressing the wrong problem?
Last month, retired federal judge Shira A. Scheindlin shared her experiences imposing mandatory minimum sentences in a Washington Post “Perspective” piece.
“Mandatory minimums were almost always excessive,” she wrote, “and they made me feel unethical, even dirty.”
According to Judge Scheindlin, “The fact that the United States, with less than 5 percent of the world’s population, incarcerates 25 percent of the world’s prisoners is largely due to mandatory minimum sentences.”
Scheindlin describes encounters with a series of prisoners she was forced to sentence to minimums, each crushed under the wheels of “our laws.”
It turns out that the judges are blameless in this process—although Judge Scheindlin apparently feels even more blameless than the others. What, after all, could judges do in the face of the statutes?
Judge Scheindlin joins a swelling chorus of ex-presidents, retired judges, and remorseful former prosecutors who agree that we have a mass incarceration disaster on our hands.
Despite its diversity, the choir sings the same hymn: “The Law Made Us Do It!”
No it didn’t.
“The Law” gave criminal justice practitioners the tools to do it with, but they chose to pick up the tools and to use them.
Unless we all face up to that fact and understand why the choices these actors made seemed like good ideas to them at the time, they (or their successors) will, after a decorous interval, just do it again, whether there are mandatory minimums in place or not.
The fact is, in every one of the cases Judge Scheindlin describes—and in the 1,715 cases that ultimately won commutations from President Obama because he decided the sentences were extreme—there was a moment when human actors in the criminal justice system had a choice about whom to arrest, what to charge, which forum (state or federal) to bring the charge in, or what sentencing provision to invoke.
They could have zigged, but they chose to zag.
Much of the punditry on the “criminal justice reform” issue is based on a false understanding—or at least one so radically incomplete that it might as well be false— of the sources of distended sentences and warped racial impact.
This dominant explanation of the roots of mass incarceration imagines that some legislator, prosecutor or judge sat and pondered the interaction of various substantive criminal law goals such as punishment, deterrence, incapacitation, and rehabilitation, and decided on a legislative scheme, a prosecutorial strategy or a sentence.
Next, they picked a number based on a careful policy calculation.
Our predecessors miscalculated. So, we will simply find a new, better number: change the statute, rewrite the Guideline.
This top-down approach—the one that Judge Scheindlin’s piece exemplifies—obscures the actual problem.
Judge Scheindlin’s preoccupation with the subjective personal discomfort experienced by sentencing judges may seem strange to readers more impressed by the horrific impact of the sentences imposed on the defendants and their families, who might understandably respond, “Who cares what you feel?”
But, in fact, Judge Scheindlin’s discomfort provides an important clue to what is really happening.
What we confront here is not a dispute among mandarins about sentencing philosophy that can be permanently resolved by legislative amendments on high.
What we actually face is a population of cops, lawyers, probation officers, and judges trying to get through their days. They are not driven by ideological commitments or racist theories. But they are under pressure, from the political and media climates, their caseloads, the docket lists, their peers, and the administrators who thirst for “outputs.”
No one sets out to do extraordinary harm to individual minority defendants; it’s worse than that. The fact is, most of the frontline actors don’t know enough about any individual minority defendant to target one.
They barely take time to see them.
These players are seeking their own comfort and safety as much as they are seeking anything, and their strongest allegiance is to the path of least resistance.
They want to get rid of the damned case without a trial, and to move on to the next one. Then, tomorrow, they will be able to handle the next next case in the same way as long as they manage to preserve the “going rate” today. Long sentences are a weapon in their struggle, not their ultimate goal.
Their decisions may be incorrect, and they may not be exactly admirable; but they are rational. They solve their personal local problem, at least for a moment.
Eliminating some mandatory minimum sentences was a step in the right direction; there are many more we can and should eliminate. (A significant point that Judge Scheindlin does not address is that the threat of mandatory sentences provides a powerful plea bargaining weapon that is almost as distorting as as the executed sentences themselves.)
But eliminating mandatory minimum sentences is not a magical cure. The social science research of scholars such as Fordham’s John Pfaff tells us that our promiscuous use of prison time is only marginally a question of the length of mandatory sentences.
The perspectives of the frontline operators would tell us the same thing if our op ed columns were open to them as well as to judges.
The core of Judge Scheindlin’s essay is her lament that “While I bore the title ‘Honorable Judge,’ I felt less than honorable and more like a complicit tool of an unjust system.”
The strange thing is that Judge Scheindlin shrinks from the implications of her own observation. Yes, she’s right, the distended sentences she decries are system errors. They are not the result of legislative blunders.
The answer to the question “Who is responsible for this grotesque result?” is: “Everyone involved, to one degree or another, if not by making a bad choice, then by failing to anticipate and intercept or discourage someone else’s.”
Sure, “everyone” does include legislators and Sentencing Commission members, but they do not act alone, and they couldn’t have created the results by themselves.
They needed cops, probation officers, prosecutors, defenders and, yes, judges. (This same logic applies just as fully to sentences that are too short: for example, to the release of manifestly dangerous individuals who could have been kept off the streets.)
Maybe Judge Schiendlin is wrong to feel “dirty.”
But none of us who have been involved in the American criminal justice system over the last quarter century should feel too clean either. Our collective impact has been too devastating; its racial biases too stark.
Preventing mass incarceration depends on understanding where mass incarceration really came from—charge by charge, case by case, sentence by sentence.
Judges don’t have to resign to protest the sentencing laws in order to be effective in bending the future in the right direction. (Although one, John S. Martin of the Southern District of New York, did resign, and his resignation amplified his eloquent statements on the issue.)
The judiciary could take the lead by issuing a call to convene the careful all-stakeholders examination of the system’s operation in (for example) any one of the 1,715 federal sentencings that drew President Obama’s attention—an examination that is not aimed at blame but at understanding and prevention.
They could call everyone to the table—and include the members of the communities where sentences impact safety in the conversation.
Blaming the appalling aggregated numbers on the statutes, and then strenuously washing our hands won’t work very well.
But if we take a measured look at why we all did what we did, and to whom we did it, we might all start feeling a little cleaner together.
James Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.
The New York Times reports that Uber developed apps that identified and blocked government regulators using the app to find evidence of illegal behavior: Yet using its app to identify and sidestep authorities in places where regulators said the company was breaking the law goes further in skirting ethical lines — and potentially legal ones, too. Inside Uber, some of…
The New York Times reports that Uber developed apps that identified and blocked government regulators using the app to find evidence of illegal behavior:
Yet using its app to identify and sidestep authorities in places where regulators said the company was breaking the law goes further in skirting ethical lines -- and potentially legal ones, too. Inside Uber, some of those who knew about the VTOS program and how the Greyball tool was being used were troubled by it.
One method involved drawing a digital perimeter, or "geofence," around authorities' offices on a digital map of the city that Uber monitored. The company watched which people frequently opened and closed the app -- a process internally called "eyeballing" -- around that location, which signified that the user might be associated with city agencies.
Other techniques included looking at the user's credit card information and whether that card was tied directly to an institution like a police credit union.
Enforcement officials involved in large-scale sting operations to catch Uber drivers also sometimes bought dozens of cellphones to create different accounts. To circumvent that tactic, Uber employees went to that city's local electronics stores to look up device numbers of the cheapest mobile phones on sale, which were often the ones bought by city officials, whose budgets were not sizable.
In all, there were at least a dozen or so signifiers in the VTOS program that Uber employees could use to assess whether users were new riders or very likely city officials.
If those clues were not enough to confirm a user's identity, Uber employees would search social media profiles and other available information online. Once a user was identified as law enforcement, Uber Greyballed him or her, tagging the user with a small piece of code that read Greyball followed by a string of numbers.
When Edward Snowden exposed the fact that the NSA does this sort of thing, I commented that the technologies will eventually become cheap enough for corporations to do it. Now, it has.
One discussion we need to have is whether or not this behavior is legal. But another, more important, discussion is whether or not it is ethical. Do we want to live in a society where corporations wield this sort of power against government? Against individuals? Because if we don't align government against this kind of behavior, it'll become the norm.
Judges in New York have been urged to formally remind prosecutors of their obligation to turn over evidence that might exonerate defendants before a trial— or face contempt charges. It’s a step long advocated by reform advocates like the Innocence Project—will other states follow suit?
Michael Morton was exonerated in 2011 after spending more than 24 years in prison for murdering his wife, Christine, in their Texas home. She was bludgeoned to death after he left for work one summer day in 1986, and found in their bed.
The evidence which eventually exonerated him— a bloody bandanna with another man’s DNA on it—was not the only thing that pointed to another culprit, according to the Innocence Project.
Morton’s young son, who was present during the murder, had also said that a “monster”— not his father—carried out the crime, and police investigating the murder were told by a neighbor about a man parked in a green van behind the Morton house. There was also evidence indicating that someone had possibly tried to use Ms. Morton’s credit in a jewelry store.
The trial judge in the case, at the request of the defense, had ordered the prosecutor to turn over all reports by the case’s lead investigator, who was not called as a witness. The prosecutor did not comply. That refusal earned him a five-day jail term years afterward. By then, the prosecutor, Ken Anderson—named by the State Bar of Texas as “Prosecutor of the Year” in 1995—was a judge. The case led to a wave of criminal justice reforms in the state.
And it was one of many similar ones around the country that have led to a rethink of trial procedures.
Last month, New York State Chief Judge Janet DiFiore threw her support behind a recommendation by the New York State Justice Task Force, urging judges to issue similar orders reminding prosecutors of their obligations to turn over evidence at the outset of all criminal trials.
DiFiore called it a “groundbreaking” recommendation. And advocates of court reform hope it paves the way for similar procedural changes in other states as well.
“Will this decrease wrongful convictions? Absolutely,” Innocence Project Co-Director Barry check, told The Crime Report.
The Innocence Project was among the groups that lobbied for the recommendation, with the Morton case in mind.
The model order drawn up by the Justice Task Force reminds prosecutors of both their Constitutional and ethical obligations. Noting that “the district attorney and the assistant responsible for [a] case have a duty to learn of such favorable information that is known to others acting on the government’s behalf in the case, including the police,” it recommends that they “confer with investigative and prosecutorial personnel” and review “files directly related to the prosecution or investigation of this case.”
It also spells out what “timely” means: No later than 30 days before the start of a felony trial, and 15 days prior to a misdemeanor trial. And it specifies what the disclosed information should include: benefits and promises made to witnesses for their cooperation, prior inconsistent statements and uncharged criminal conduct or convictions, and information regarding a witness’s mental or physical illness or substance abuse.
Scheck said the power of the recommendation comes from two of its aspects.
First, it will ensure that investigatory files other than the prosecutor’s files are searched for favorable information, making it a “prophylactic rule that will prevent Brady violations.”
Second, the fact that these reminders come as orders means that prosecutors who willfully violate them can be held in contempt, which will change the culture around disclosure.
Scheck called it “a cognitive science problem,” in which having judges talk about what should be disclosed before trial will lead attorneys to think more closely about it.
As for consequences faced by prosecutors who fail to turn over information, he said, “We’re only interested in people who the court ultimately believes are deliberately breaking the rules, and I don’t think there’s that many of them.”
That’s one reason why Barry Pollack, President of the National Association of Criminal Defense Lawyers, says the recommendation could be stronger.
Although he conceded that the order would offer a sanction with “real teeth,” he pointed out that the punishment would only apply to a small number of cases.
“I think that the proposed order is geared toward intentional violations,” he said. “But I think that intentional violations, while they occur, are exceptions, not the rule.”
Pollack also believes the order should be mandatory.
Even in its present form however, the recommendation could have an impact on prosecutorial behavior, said Pollack.
It underlines that that prosecutors should not be asking themselves, pretrial, “what’s the most I can fail to turn over and not get reversed on appeal,” but rather, what information points to innocence.
“I think other states will most definitely take notice and you could well see other states following New York’s lead,” Pollack said. “I think that is a good thing and a healthy thing. I just don’t think it goes far enough.”
Bill Fitzpatrick, Onondaga County (NY) District Attorney and Chairman of the Board for the National District Attorneys Association, said his organization does not oppose the adopted recommendation, but believes it is “superfluous.”
Kate Pastor is a Bronx, NY-based freelance journalist. She welcomes comments from readers.
Etan Patz disappeared on May 25, 1979, while walking to his school bus stop, and the case had long been one of New York City’s most notorious unsolved killings. A man who worked in a bodega in his Manhattan neighborhood was convicted in a second murder trial following a hung jury.
When the verdicts that Stan Patz waited 38 years for were finally delivered Tuesday, the Manhattan dad could barely speak. An emotional Patz gripped the hands of two friends, squeezing them as a Manhattan jury convicted Pedro Hernandez in the kidnapping and murder of his 6-year-old son, Etan, reports the New York Daily News. He exhaled deeply and silently mouthed a single word of approval: “Yeah.”
The guilty verdicts against Hernandez, 55, a former bodega worker, were returned Tuesday after nine days of deliberations by the diligent jury. The boy disappeared on May 25, 1979, as he walked alone to his school bus stop for the first time. It was one of the city’s most notorious unsolved killings — and a case that resonated nationwide. Hernandez’s first trial ended 21 months ago with a hung jury after a single holdout refused to convict the defendant.
Supreme Court nominee Neil Gorsuch may have helped his confirmation chances by calling it “disheartening” that President Trump criticized a federal judge as a “so-called judge” and called appeals court members “disgraceful.”
U.S. Supreme Court nominee Neil Gorsuch may have helped cement his chances for confirmation by telling senators that President Trump’s tweets critical of federal judges were “disheartening” and “demoralizing,” the National Law Journal reports. Gorsuch’s comments could telegraph to the legal establishment and to the Supreme Court itself that he embraces the importance of judicial independence. An unwritten rule in Washington discourages personal attacks on federal judges by presidents as a threat to the judiciary’s role in checking executive branch overreach. “Judge Gorsuch’s comments appropriately reflect the utter disregard President Trump has shown for the judiciary in just three weeks,” said Neal Katyal, an acting solicitor general in the Obama administration.
Harvard law Prof. Laurence Tribe said, “I trust he said it not as a stratagem for confirmation but as an expression of his views” Sen. Richard Blumenthal (D-CT) quoted Gorsuch. The senator called Trump’s comments “abhorrent” and “unacceptable.” Trump labeled U.S. District Judge James Robart of Seattle a “so-called judge” after Robart on Feb. 3 blocked enforcement of his travel ban from Muslim-dominated nations, and said that if a terrorist attack occurs, Robart should be blamed. Trump also observed the hearing on the case in the U.S. Court of Appeals for the Ninth Circuit questioned Justice Department and called the judges “disgraceful” and incapable of understanding concepts that “a bad high school student would understand.”
The National Task Force on Fines, Fees and Bail Practices issued a “bench card” — a clear set of instructions — to be used by state judges on how to handle cases when defendants don’t have money to pay court fines and fees. Many people have been jailed for not paying fines and fees on minor infractions, in violation of a U.S. Supreme Court ruling.
The nation’s top state judges have taken a big step to end the practice of sending impoverished people to debtors’ prisons, NPR reports. The National Task Force on Fines, Fees and Bail Practices issued a “bench card” — a clear set of instructions — to be used by state judges across the nation. When NPR ran a series in 2014 about how people end up behind bars when they don’t have money to pay court fines and fees — even on minor infractions like traffic tickets — one cause of the problem was confusion among state judges.
Many didn’t know that, in 1983, the U.S. Supreme Court ruled against he practice. Some courts had no set standard for determining who was too poor to pay fines and fees that typically run hundreds or thousands of dollars. Some judges told impoverished people to pay with their veterans or welfare benefits or o get money from a relative. One homeless Georgia man was caught stealing a can of beer worth less than $2, but was sentenced to a year in jail when he couldn’t pay fines and costs that ran more than $400 a month. The new two-page set of guidelines tell judges that they’re allowed to send people to jail for non-payment only when they have the means to pay, but “willfully” refuse to pay. The instructions spell out how to determine who falls below the poverty line, and how to come up with alternative sanctions, like reducing a fine, extending the time to pay it, or requiring community service, instead. “It’s constitutionally right and it’s also morally right,” says Maureen O’Connor, Ohio chief justice and co-chair of the national task force.