FL Tech Firm, Lawyers Lock Horns Over Traffic Ticket Biz

TIKD alleges in a lawsuit that it is being blocked from consulting on traffic-ticket cases by the Florida Bar Association and The Ticket Clinic, a law practice with 28 offices in Florida. Its legal foes counter that TIKD is practicing law without a license.

A Florida tech startup that allows drivers to fight their traffic tickets from their smartphones says the Florida Bar and The Ticket Clinic are conspiring to drive it out of business, reports the Miami Herald. The startup, TIKD, has taken its fight to federal court, filing suit against both the Florida Bar Association and The Ticket Clinic, a private ticket-defense law firm. Earlier this year, TIKD launched its tech-enabled service and says it has served more than 5,000 people. TIKD is not a law firm, but instead uses independent lawyers to resolve the tickets at a cost that is 15 to 20 percent less than the ticket fee. Since then, founder and CEO Christopher Riley said, The Ticket Clinic has been thwarting its efforts to build a business at every turn.

The Ticket Clinic has filed complaints with the Florida Bar, claiming that TIKD is practicing law without a license, and has filed grievances against lawyers who have represented a TIKD customer. The stakes are high: The Ticket Clinic has 28 offices in Florida and 15 in California, and its 40 full-time attorneys have resolved more than 5 million cases. TIKD alleges in its lawsuit that the Florida Bar has abetted the conflict by dragging out an investigation for 10 months. It says the bar association has “engaged in a concerted effort to exclude TIKD…by enabling and reinforcing the Ticket Clinic’s anti-competitive propaganda campaign.”

from https://thecrimereport.org

How Appeals Courts ‘Rubber Stamp’ Injustice

Although appellate courts can’t know whether a defendant is actually innocent, they can—or should—know when a trial is unfair. Unfortunately, says a New York attorney who writes under the pseudonym “Appellate Squawk,” most are simply rubber stamps for miscarriages of justice in lower courts.

It’s always good news when an innocent person is exonerated. But how many wrongful convictions that come to light would have been reversed years earlier if appellate courts had done their job?

The public hears about miscarriages of justice caused by lying witnesses, prosecutors hiding evidence favorable to the accused, forensic expert testimony based on hooey. But few people besides appellate lawyers and their clients know that there’s another leading cause: a system of appellate review that is often so biased and perfunctory that it might as well be called “appellate rubber-stamp.”

For example, Yusuf Salaam, one of the Central Park Five, was convicted based on his confession in the highly publicized case of the 1989 assault and rape of a jogger. All five were exonerated decades later when the real perpetrator came forward.

Illustration by Appellate Squawk

But New York’s Court of Appeals should have reversed Salaam’s conviction at the time. Even the abbreviated facts recited in its 1993 decision show that his confession was involuntary and should have been thrown out.

As the dissenting judge argued, the police had isolated this 15-year old from his family, falsely told him that his fingerprints were on the jogger’s pants and suggested that he’d be released if he admitted to participating in the attack. Any court conscientiously following the law would have suppressed a confession obtained by such coercive tactics.

But the majority, in a rather testy opinion, ignored the facts and concluded that Salaam “chose” to implicate himself.

Another example is Martin Tankleff, a 17-year old convicted of murdering his parents. In denying his appeal, the court saw nothing coercive about the detective’s extorting his confession by falsely telling him that his father had regained consciousness and identified him as the attacker.

Rather, the court inexplicably concluded that the confession was all the more reliable for having been induced by a trick.

The court also saw nothing unconstitutional about eliciting the confession without Miranda warnings, asserting that Tankleff was “clearly” not in custody and therefore not entitled to them. The lone dissenting judge reminded the majority that it had overlooked a few facts: the police had isolated this teenager from his family and subjected him to hours of accusatory questioning.

Thus, he clearly was in custody so that his statements were involuntary and should have been suppressed.

Salaam and Tankleff were able to prove their innocence after many years in prison—an extremely rare occurrence. What’s not so rare is the way the appellate courts ignored the facts and the law.

Why should this be?

You’d think courts would examine appeals with the care of a mechanic inspecting an airplane before takeoff, of a doctor reading an X-ray. “We must be deeply mindful of the dire consequences of a criminal conviction,” the judges would exhort one another. “So we’d darn well better scrutinize each appeal carefully.”

But that’s not the spirit they bring to appellate review, at least not in criminal cases. Criminal appeals are handled by a battery of anonymous clerks who are apparently given to understand that their job is to uphold the conviction by any means necessary.

They write memos for the judges that are mostly if not entirely based on the prosecution brief. They draft the decisions affirming the conviction.

Only once in a blue moon is any error considered prejudicial enough to warrant a reversal, even if all that means is a new trial. Did the prosecutor tell the jury she wouldn’t be prosecuting the defendant unless she knew he was guilty? “Did not exceed the permissible bounds of rhetorical comment,” the court will conclude.

Was the defense lawyer a potted plant? “We cannot say he was not pursuing a reasonable strategy.”

Did the judge conduct the trial with the defendant involuntarily absent? “We find no constitutional violation under the [unstated] circumstances.”

As Dave Barry would say, we’re not making this up.

Why should appellate review be such a contradiction in terms? Maybe because reversing a criminal conviction is unpopular. “Three judges overturn 12 jurors!” howled New York Times columnist Jim Dwyer when former New York State Assembly Speaker Sheldon Silver’s conviction was recently reversed.

No judge wants to be howled at. But a jury verdict is only as fair as the trial.

It would be interesting to go back and examine the rejected appeals in every exoneration case. Chances are, most of those trials were infected with prejudicial errors. Although appellate courts can’t know whether a defendant is actually innocent, they can—or should—know when a trial is unfair.

Unless appellate review becomes more meaningful, miscarriages of justice will continue to be an intrinsic part of the criminal justice system.

Appellate Squawk is the pseudonym of an appellate attorney in New York City, and the author of a satirical legal blog of that name. Readers’ comments are welcomed.

from https://thecrimereport.org

Living Under Joe Arpaio’s ‘Reign of Terror’

San Francisco DA George Gascón repeatedly clashed with Maricopa County, Ariz., Sheriff Joe Arpaio when he headed the Mesa, Ariz., police department.  In an exclusive interview co-published by TCR and WitnessLA, he calls on prosecutors and law enforcement officials around the country to “stand together” in defense of the Constitution following Trump’s controversial pardon.

As the debate over last Friday’s presidential pardon of Joe Arpaio, the former sheriff of Maricopa County, Ariz., continues to roil the nation, TCR highlights a law enforcement figure who repeatedly clashed with the self-styled “toughest sheriff” of America for comment.

San Francisco District Attorney George Gascón, who served as chief of the Mesa, Ariz., police department between 2006 and 2009, possesses a trove of hard-won personal knowledge about how Arpaio works—perhaps more than nearly any other law enforcement figure in the nation. A 28-year veteran of the Los Angeles Police Department, Gascón rose to become second in command of the LAPD under Bill Bratton, overseeing 8,000 patrol officers, before he became the chief cop in Mesa,a city more populous than Atlanta, Kansas City  or Miami. Although it’s been nearly 10 years since Gascón, who fled Castro’s Cuba with his family at the age of 13, clashed with “Sheriff Joe,” his memories and observations represent a vivid reminder of the activities that led to Arpaio’s conviction.

In a conversation with WitnessLA Editor Celeste Fremon, Gascon spells out the constitutional violations that he says were committed by the sheriff  “almost on a daily basis,” discusses what it was like to work under Arpaio’s “reign of terror,” and suggests how prosecutors and law enforcement should respond to President Trump’s “mockery of the rule of law.”

WitnessLA: What was your reaction when you first heard on Friday night that the president had pardoned former Maricopa County Sheriff Joe Arpaio?

San Francisco DA George Gascon. Photo courtesy @George Gascon

George Gascón: Well, you know it was incredibly emotional for me because I lived around the reign of terror of Joe Arpaio for three years. I saw firsthand the number of constitutional violations that were being committed by Joe almost on a daily basis.

I remember that I was asked to give sworn testimony at a Congressional hearing in 2009 about the 287-G program, the precursor to Secure Communities, which is the program where local law enforcement is deputized to do immigration work for ICE (Immigration and Customs Enforcement). Arpaio had one of the largest group of such officers anywhere in the nation, and they were absolutely trampling over people’s rights.

WLA: Give us an example of the kind of “trampling” you’re talking about.

Gascón:  For instance—and this was very common—you would have Joe’s deputies out in the early morning when construction workers, farm workers and gardeners are headed to work. Pickup trucks would be out on nearly every road in the county, and there would be some brown-looking people in the truck. The officers would spot a truck like that and make a traffic stop, or a “pretext” stop, and then ask everybody for their for their papers. Those individuals who couldn’t show identification proving to the satisfaction of the deputies that they were here legally, would be arrested and taken to jail.

They’d arrest people who were green-card holders, and many times they’d arrest U.S. citizens, and would hold them for hours. When I was providing testimony for Congress, a 19-year old Latino man (joined) me. He was a citizen, born in Phoenix, but he was still detained for 18 or 20 hours in one of those sweeps, before he could prove that he was U.S. born.

Another common strategy was for Arpaio’s people to go in the morning to the K -12 schools in a community, especially the elementary and middle schools where kids were more likely to be driven to school by their parents.

The deputies would make traffic stops with anybody who looked Latino. This caused the community parents to become so terrified, that kids were not being taken to school. I had parents coming to me for help, asking, “How do I get my kids to school?”

WLA: Why was it an abuse of rights for Arpaio’s deputies to stop one of those farm worker crew trucks, or those parents? 

Gascón: You cannot simply target people on the basis of race, or the color of their skin, to do police work. You can use color or race when you are looking for a pre-identified suspect, and you see someone who meets that description. But you cannot simply say, for instance, I’m going to stop all green people because some green people may be committing crimes.

So, what the Maricopa County sheriff was doing is basically saying, OK we know that most undocumented immigrants in Maricopa County are going to be of Latino origin. A lot of Latinos are brown-skinned people. So if we start making traffic stops of people who look like this, we are going to have a high degree of probability that eventually we’re going to find some people that are here without documents.

Then Joe’s people would do sweeps where they’d look for people who matched the stereotypical look of immigrant workers of Latino descent, and they would stop them— sometimes for a valid traffic violation (or) sometimes they would just fabricate the cause. In either instance, the deputies would question the people they stopped about their legal status. If the deputies thought the answers weren’t satisfactory, those folks would be arrested and ICE would be notified.

The problem is, first of all, the predicate way of going after people just based on their apparent national origin and racial characteristics is unconstitutional.

Second, because often Joe’s deputies had so little to go on, they were actually arresting and holding people for hours in lock-up facilities when the people they arrested had a legal right to be in this country or, in some cases, they were born here. All that is a violation of our constitutional right to due process under the Fourth and the 14th Amendment.

Editor’s Note: The Supreme Court ruled a century ago, and again in 2011, that whether people have immigration documents or not, they are still afforded the same protections as citizens.

Staring Down Sheriff Joe

WLA: At some point Arpaio appeared to go to war with you personally.

Gascón: My opposition to his work became very public, with a lot of media coverage. Because of this, there was a time where Joe decided to get some questionable warrants to search several Mesa city government facilities, including the public library, the main city administration building, and a police facility.

So early one morning , I get a call from our dispatcher saying,  “Hey, there’s a large number of men dressed in what appears to be tactical gear mustering at a local park.”

We were a little concerned because we’d had a couple of issues recently where the cartels came in to do hits on their adversaries, and they’d have people dressed in police tactical gear. So we weren’t sure what we were dealing with, because no one had notified us that this operation of Sheriff Arpaio’s was going down. So our officers were very concerned about who this group might be.

I told them to have a supervisor approach the group very peacefully and try to identify them. When my people went, they immediately determined that they were Maricopa County sheriff’s deputies, with dogs, and a bunch of extra (individuals) who Joe’s people said they were just doing a training exercise.

Typically, as you probably know, when one agency is going to do a tactical operation in another agency’s jurisdiction they notify them. But they not only didn’t notify us; when we saw them, they lied to us, which is unheard of between law enforcement agencies.  We decided we were just going to monitor them quietly from afar, which is what we did. But then the next thing we knew, we had groups of deputies storming the main city administration building.

What we learned later, is that they were looking for undocumented workers on the janitorial staff. Then they stormed through the city library. I believe there were 20 women on the cleaning crew. And three did not have the ability to show they were here lawfully, and they were arrested.

A side story to this is that one of those women arrested had young kids at home who were left alone in their house for over a day until people figured out the mom wasn’t there, and there were no adults in the house.

Then later that morning, the group also hit a police facility where the Mesa Police Department kept all the credentials for all the city’s workers. And [Arpaio’s deputies] went in and took the hard drives of the computers that had all this information.

The whole idea behind this whole thing was that I, as the Chief of Police, was facilitating the credentialing of undocumented workers to work for the city, which wasn’t the case. It all fell apart. But this is kind of the thing he did.

Immigration and Public Safety

WLA: Los Angeles Chief of Police Charlie Beck and other law enforcement officials have repeatedly stated that having local cops help ICE is not in the best interests of public safety. Please explain why you believe that is true.

Gascón: Let me give you two concrete examples. One happened when I first became chief of police in Mesa. A person came to me and said, “We have a young woman we know who was brutally assaulted and raped. She is from Guatemala and is undocumented. And she is afraid to go to the hospital to get medical treatment because that might lead to people reporting her to the federal government.

She also refused to report the crime to the police because she was afraid of being deported.

So you had a woman who had been brutally raped, needed medical assistance, and really needed to have law enforcement investigate the case, but who didn’t want to do any of those things because of her immigration status. We were finally able to get her the medical assistance she needed.

But she was never willing to make a police report. This didn’t happen in Mesa, but happened in another jurisdiction nearby in Maricopa County.

We came to find out later that the person who sexually assaulted her had likely been involved in other previous sexual assaults and eventually assaulted and raped another woman. So this is an example of why you don’t want community members to be afraid to report a crime. When that happens, the criminal elements in the community believe they can act with impunity because certain victims, and certain witnesses, are not going to report them.

WLA: What other examples should we know about?

Gascón: When I came to Mesa, the city was having problems with violent crime, and with property crime. During my tenure there, we were able to reduce both kinds of crime substantially. But, during that same time, in the unincorporated area of Maricopa County, meaning the areas that were not policed by a local police force, but were policed by Joe Arpaio’s sheriff’s department, crime consistently went up. And many of those unincorporated areas actually bordered our city.

When we looked at it, [we found that] the reason why crime was going up there just across the city line while, in similar communities, crime was going down, was because, number one, we began to develop a relationship with our community members, who were then willing to come and report crime and work with us.

And number two, we were able to dedicate our resources to deal with what local law enforcement is trained and chartered to do, which is to deal with local crimes. Whereas in the case of the Maricopa County Sheriff’s Department, people were afraid to report crimes, because they did not know if they, or a neighbor, could be deported as a result. And also, crime enforcement suffered because a lot of Joe’s resources were being taken away from the primary function of law enforcement, and were put instead toward immigration enforcement.

There was one town that was policed on contract by the Maricopa County Sheriff’s Department. When that town later decided to create its own police department, they found out that there were hundreds of sexual assault cases that had gone uninvestigated because the sheriffs didn’t have the resources to both.

WLA: I read something about that in prepping for this interview. I think there were 400 uninvestigated sexual assault cases, 32 cases involved children, one involved a two-year-old child.

Gascón: It’s been a while, but that sounds about right. Those are the reasons why you as citizen should be very worried about having your local police engaging in doing immigration enforcement work. It can harm public safety. And, at the end of the day, this is where I think there is such a lack of moral authority in the decision that the president made to pardon Joe Arpaio.

The president often talks about the rule of law. Well, if you’re such a guardian of the rule of law, how do you square a pardon for this guy who has been violating the rule of law on a regular basis—massively?

The Road to Criminal Contempt

WLA: Let’s talk about the court order that Arpaio defied that led to the president’s pardon. We know that the ACLU filed a federal class action lawsuit against Arpaio in 2007, alleging that he and the Maricopa County Sheriff’s Office engaged in racial profiling and unlawful traffic stops of Latinos. Four years later, the lawsuit went to trial. What came next?

Gascón: In 2011, after the federal jury found Maricopa County and Joe guilty, Joe was ordered by the court to stop those illegal practices. But this was right around election time, and for the first time he was challenged by someone who might have a chance of beating him. But Joe also knew that, for him, in Maricopa County immigration had always been a winning issue. So he decided to continue those illegal patrols, even though he had been ordered by a federal judge not to do it.

WLA: So then, five years later, in May 2016, U.S. District Judge Murray Snow handed down a 162-page ruling finding Arpaio guilty of civil contempt of court. When Joe still didn’t stop, Snow referred Arpaio and three of his aides to the U.S. Attorney’s Office, requesting that they be prosecuted for criminal contempt of court. He was convicted in July 2017.

Gascón: By the way, Judge Snow, who found him in contempt of court, is a very conservative Republican judge. So you can’t make the argument that this was some bleeding-heart liberal judge appointed by Obama. That is just not the case. [George W. Bush appointed Snow.] He is a very conservative jurist, but someone who believes in the rule of law.

What President Trump has done here is a complete mockery of the rule of law. He provided a pardon for a law enforcement official who consistently violated the Constitution, who was found to have violated the Constitution with racial profiling by a federal civil trial process. And after he was ordered by a judge to stop this unconstitutional behavior, he continued to violate the constitution anyway.

And how do you square the fact that Maricopa County has paid millions and millions of dollars in lawsuits for all his wrongful actions? That money should be going to public safety, not to attorneys for plaintiffs whose rights were violated.

WLA: What are next steps for law enforcement, and for others who disagree with these actions?

Gascón: Well, there are a lot of lessons here, just as there are a lot of lessons in what happened in Charlottesville, because many of these recent events are intertwined. One main lesson is that we cannot look the other way. We have to speak up. We have to make it clear that we’re not going to allow our nation to be overtaken by hate and by a complete disregard for the values that we hold dear.

As for what’s next, whether you’re a law enforcement officer or you’re a gardener, we all have to stand together, because our shared values of tolerance and inclusion are the ultimate defense to hatred and xenophobia—whether we’re black or brown or white or Jewish, or any other group, it doesn’t really matter. There are some things that are immoral about what is happening in our nation and we have to speak up and we have to confront it with lawful means, but we have to be clear about it.

WLA: Is there a specific place for prosecutors in the kind of actions you just talked about?

Gascón: I think we all play an important role.  I find this [alt-right]  white supremacy, or white nationalism, or whatever you want to call it, to be extremely disturbing, and shameful. But as the district attorney of San Francisco County, our office is going to prosecute anybody, regardless of what side of the political spectrum you come from, if you commit a violent crime at a demonstration. So as much as I disagree with those people, they will have the protection of the San Francisco DA’s office as individuals to exercise their freedom of expression.

That protection is precisely what makes us different from some other countries in the world. And this is the difference, quite frankly, between us and the current administration. We know what the rule of law is, and we’re prepared to uphold the rule of law—for everyone. We will not look the other way.

Editors’ Note: On Monday, the National Hispanic Caucus of State Legislators (NHCSL) added its voice to the chorus of condemnations of the Trump pardon, calling the move  an “affront” to the U.S. judiciary process.

The Crime Report is pleased to co-publish this interview with WitnessLA.  Readers’ comments are welcome.

from https://thecrimereport.org

Want to Snip Your Jail Time? Get Sterilized, Says TN Judge

Judge Sam Benningfield in rural White County, Tenn., has offered the 30-days-off deal for two months. Sixty men and women have signed up. The ACLU says the idea is unconstitutional.

Inmates at the White County jail in rural central Tennessee are being offered 30 days off their sentences if they agree to be sterilized, reports UPI. Judge Sam Benningfield said he introduced the program May 15 to both men and women as a way to prevent procreation by repeat drug offenders and others accused of crimes. “I understand it won’t be entirely successful but if you reach two or three people, maybe that’s two or three kids not being born under the influence of drugs. I see it as a win-win,” he told WTVF-TV in Nashville.

So far, 32 women have had a Nexplanon implant put in their arm, which can prevent child birth for up to four years. Thirty-eight men have signed up to get a vasectomy, which can be permanent. District Attorney Bryant Dunaway said he does not support the idea, which he called unethical. It might also be unconstitutional. “Offering a so-called ‘choice’ between jail time and coerced contraception or sterilization is unconstitutional,” said Hedy Weinberg of the Tennessee ACLU. “Such a choice violates the fundamental constitutional right to reproductive autonomy and bodily integrity by interfering with the intimate decision of whether and when to have a child, imposing an intrusive medical procedure on individuals who are not in a position to reject it.”

from https://thecrimereport.org

Updated Guide Shows Rights After Arrest, Conviction

Four organizations partner to publish profiles of how each jurisdiction in the U.S. handles the loss and restoration of civil rights and firearms rights, judicial and executive mechanisms for avoiding or mitigating “collateral consequences,” and provisions addressing non-discrimination in employment and licensing.

Four organizations announced an expanded Restoration of Rights Project that offers online state-by-state analyses of the law and practice in each U.S. jurisdiction relating to restoration of rights and status after an arrest or conviction. Jurisdictional profiles cover areas such as loss and restoration of civil rights and firearms rights, judicial and executive mechanisms for avoiding or mitigating “collateral consequences,” and provisions addressing non-discrimination in employment and licensing.

The project is managed by the Collateral Consequences Resource Center (CCRC) and its partner organizations, the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, and the National HIRE Network. The project includes a set of 50-state comparison charts that summarize the law and show national patterns in restoration laws and policies. The resources in the project were originally published in 2006 by CCRC director Margaret Love. The project’s managers say its resources have been re-organized into a unified online platform that makes them easier to access, use and understand.

from https://thecrimereport.org