America’s ‘Shadow’ Vigilantes

What do the Three Strikes law, mandatory-minimums for drug offenders, the Stop Snitching campaign, and private police have in common? According to Paul H. Robinson, a law professor at the University of Pennsylvania Law School, they are all expressions of a “shadow” vigilantism that has spread in the contemporary U.S.—usually in response to perceived failures in the justice system.

What do the Three Strikes law, mandatory-minimums for drug offenders, the Stop Snitching campaign, and private police have in common? According to Paul H. Robinson, a law professor at the University of Pennsylvania Law School, they are all expressions of a “shadow” vigilantism that has spread in the contemporary U.S.—usually in response to perceived failures in the justice system.

shadow vigilantesThe forthcoming Shadow Vigilantes: How Distrust in the Justice System Breeds a New Kind of Lawlessness, which Robinson co-authored with his wife Sarah, a former sergeant in the US Army and social worker, explores how the impulse to take the law into their own hands has been a feature of Americans’ behavior since the Revolution.

In a conversation with TCR’s Julia Pagnamenta, Robinson explains why the history of vigilantism is more nuanced than the traditional view which defines vigilantes as groups like the KKK and white supremacists, and why vigilantism will continue to operate when disenfranchised individuals in society feel that the system is ignoring their concerns.

The Crime Report: Your book suggests that acts of vigilantism are very much tied to early American history. Can you explain?

Paul Robinson: Vigilantism certainly has, and for many good reasons, a very bad reputation. People tend to associate it with some horrendous Klu Klux Klan lynching. But of course it’s also true that it has somewhat more admirable roots in other places as well. The original American Revolution was really an act of vigilantism where the colonists thought they were being treated badly. England had not kept its end of the social contract, so they took the law into their own hands in the very dramatic way of declaring independence.

Another example is the story of the gold miners in San Francisco. This was a city overwhelmed by an influx of people either headed towards the gold hills in California or providing services in San Francisco to people headed to the gold hills, and with the swell of population came a government that for the most part was corrupt. The San Francisco vigilance committee formed itself from a large group of citizens who in very public ways went after criminals and held public trials completely independent of the official authorities. When they really did bring order back to the city, and once the government actually matured enough so that it wasn’t just a bunch of corrupt scoundrels, the vigilance committee disbanded itself.

TCR: You also mention a line in the U.S. Constitution that refers to the recourse that the American people can take when the government breaches its promise to protect its citizens. 

Robinson: Given what the creation story was for the United States, it is no surprise to find some language in the Constitution that specifically seems to support and recognize the legitimacy of some forms of vigilantism. This is a larger theme of the book: to say there really is such a thing in some circumstances as moral vigilantism. There are a lot of stories about the gay community in San Francisco being openly beaten where police ignore the anti-gay crimes. The same occurred in the South with the civil rights workers: blacks who were being victimized because of their civil rights leadership.

We have some modern-day stories about women in India who organized a vigilante group acting against men who publicly assaulted and groped women, and the police did little or nothing about it, and quite a few other stories where it’s hard not to read the story, see the extent of the victimization, see the extent of the violation of social contract by inherently indifferent police and authorities, and not be sympathetic to these groups that then openly become vigilantes.

TCR: Although the history of vigilantism in this country is more nuanced than the Klu Klux Klan, the history of white supremacist groups terrorizing and killing African-Americans is very much a part of American history… and one that is still playing out today.

Robinson: Those groups can’t claim to be vigilantes: nobody is victimizing them. Their expression of violence is just a product of their own racial bias. In that sort of situation you might well have some claim to moral vigilantism on part of the black community if the police weren’t taking seriously enough their victimization. Luckily, we are doing a little better than we were back in the Civil Rights era and the South, where a lot of civil rights groups did have to form their own vigilante groups to protect themselves.

The criminal justice system does take seriously that kind of victimization and is making prosecutions and providing protection so that we can avoid the need for black victims to form their own vigilante groups. Obviously, it’s an imperfect process at the moment, but certainly authorities are doing a better now than they did before.

TCR: Victimhood is crucial to understanding vigilantism. How do these two terms interconnect, or rather, how does one affect the other? 

 Robinson: Well certainly the victims themselves can feel the sting and frustration of the failures of justice in ways that other people can’t, and they may have the greatest motivation to become vigilantes. Whether it’s classic vigilantes or shadow vigilantes.

Human beings are built in a way that they care deeply about doing justice and avoiding injustice, and when they see that in the world around them, they are going to want to hold somebody accountable. If the criminal justice system is doing the best it can, they are willing to cut it a break and say, you know, it’s certainly trying. It’s very difficult to accurately reconstruct past events. We can’t expect it to be perfect. But when they see a criminal justice system that seems to be willfully frustrating justice, we know exactly what happened, we have compelling evidence of what happened, and we are still going to let this person walk away with no punishment, although they are clearly a rapist, or a murderer. What does that say?

TCR: Indeed, a theme in the book is the recurring ineffectiveness of government authorities in carrying out justice, especially for African-American communities.

Robinson: Right, that’s a classic invitation to moral vigilantism when it’s clear that the system isn’t going to do anything about it, and in fact is going to be complicit in the victimization itself.

TCR: You open the book with a harrowing example of a domestic abuse case. Maybe the criminal justice system shouldn’t handle cases of domestic abuse?

Robinson: I am not entirely sure I agree with that. To the extent that there are other institutions outside the criminal justice system that can attempt to reduce crime, reduce domestic violence or sexual violence, that’s wonderful, absolutely, let’s do that, but at the end of the day there is a social contract, and the criminal justice system has to step-up and provide that sort of protection. I think domestic violence is an example of how for decades the criminal justice system miserably failed. I mean there are some classic cases. The Torrington Police [in Connecticut] watched a woman [Tracey Thurman] get beat by her husband in front of them and it’s the umpteenth time that he’s done this, and they just stand around and watch.

Well, are we surprised that she, and most of the people she’s talked to, are just horribly offended with the police and the criminal justice system? Are we surprised that they don’t have the slightest confidence in the fairness and justice and effectiveness of that system? Are surprised that they would be happy to distort the system as needed from their point of view if that’s what was necessary to get the system to take this domestic violence more seriously? No, I think that’s human nature. I think that shadow vigilantism is a natural response to any time the criminal justice system systematically, apparently willingly, fails to do justice.

TCR: Right. You provide examples in the book where private citizens did take matters into their own hands and government agencies tacitly condoned their actions. 

Robinson: Yes, I mean the first half of the book is really about this struggle to recognize the legitimacy of vigilantism in these special cases, and at the same time to recognize that it’s very easy for vigilantism to slip past the boundaries of moral justification.

Once you’ve passed that signpost of what’s lawful and what’s criminal, and once you’ve justified moving into doing what’s criminal because you believe that you were morally justified as a vigilante to act or protect yourself, it’s very hard to know exactly where to stop. It’s very easy for a group to say, well, that didn’t work. Let’s do a little more. In fact, one of the chapters in the book is about reactions of communities to apparent police indifference to the increased use of drugs as essentially destroying their community, and some groups will certainly push back when the police don’t respond and seem indifferent to the damage that is being done to the community. They may step a little over the vigilante line by confronting drug dealers or crack houses.

I think one of the larger lessons from that is just to illustrate how easy it is once you’ve crossed that line to justify doing just a little more, and therefore always worrying whether you’ve passed the point about what is morally justifiable.

TCR: Do you see a correlation between this sort of vigilantism, of taking justice in your own hands, and the U.S. relationship with guns?

Paul H. Robinson

Paul H. Robinson

Robinson: I don’t see that connection. There are a lot of groups who have no particular interest in the Second Amendment, but who can say with some legitimate claim that the government has breached its social contract with them, and whether they care about the Second Amendment or not they are put in a difficult, if not impossible situation.

There’s a separate issue in moral vigilantism that is worth mentioning: even if a group is morally justified under their own terms, it’s simply from a larger societal point of view, a bad way to solve the problem of that group that is being victimized.

So, for example, one of the stories in the book is about a neighborhood that has a serious crime problem. They get together and create a neighborhood watch group that is fairly aggressive and they are actually extremely successful at reducing crime in their neighborhood, which you might see as a huge success story. This neighborhood watch group qualifies as vigilantes because they go a little outside the law sometimes, they are stepping in and doing what they think the police should be doing, but when you step back and look at the larger situation what you find is that [while] it’s now a better world for them because their crime rate is down so much, what in fact has happened is a lot of that crime has simply been pushed off into neighboring communities that don’t have as an effective neighborhood watch.

One of the problems of individual group vigilante action is that it’s not done at a larger stage, or national, or even city level, so it has that potential of simply solving the problem for one group at the expense of neighboring groups, and while it’s hard to deny that this is moral vigilante action, from a larger societal point of view it’s not a good solution.

Better that the government do that, extend more resources if need be, undertake the policy that we are better at reducing crime and apply that policy to all communities in the area. So it’s not a matter of just pushing the crime next door, but rather preventing it. That’s just an example of how, even if on its own terms moral vigilantism seems morally justifiable, it doesn’t necessarily mean it’s good for society.

TCR: You write about the 1993 kidnapping and murder of twelve-year-old Polly Klaas in Petaluma, California, Was the response to Klaas’ murder an example of a moral panic, in which a horrifying act became politicized and had devastating repercussions for people who found themselves swept up in this new tough-o- crime initiative? 

Robinson: Let me go back and introduce this notion of the shadow vigilante. The moral vigilantes we’ve been talking about so far are classic vigilantes in the sense that they are themselves going out into the street and using force, and otherwise breaking laws, and sort of substituting for the police. They are doing what they think the police and the criminal justice system should be doing. But in some ways, that takes an unusual individual. Most of us just aren’t programmed to go out and become criminals ourselves.

However, the same frustrations that generate classic vigilantism also generate shadow vigilantism. They don’t go out into the streets, but what they do is less obvious, and in ways that don’t endanger them personally nearly as much. They nonetheless act in a way that undermines the criminal justice process: they try to subvert the process to push it to do what they think it should be doing. They manipulate the criminal justice process, and this I would argue happens a lot because it’s easy for people to do, there is nothing on the line.

Ordinary people have a role in the criminal justice process. Are they going to decide to report a crime that they see? Are they going to help investigators? Are they going to as jurors follow their jury instructions, or are they going to ignore the law and do what they want? Or in a grand jury, are they going to follow their legal instructions?

Or are they going to, for example, support policies like (California’s) Three Strikes law that seem like obvious overreach? A lot of its political support comes from people who are frustrated because they don’t see the current system as effectively dealing with the kind of offenses that now have mandatory minimums, and the kinds of offenders that fall under Three Strikes.

The problem with shadow vigilantes is that they are much more dangerous because they are much more common, and because there is not much you can do about them. And it all happens in the shadows, so you don’t even know it’s going on, and it’s not just ordinary citizens. Shadow vigilantism is something that is inspired by participants in the process as well, whether you are talking about police or prosecutors, or sometimes with the acquiescence of judges.

TCR: How does law enforcement contribute to shadow vigilantism? What are the implications on the criminal justice system as a whole?

Robinson: To give an example, police “testilying” is a phrase invented by New York police officers, invented because they wanted to distinguish regular lying under oath, which they considered entirely inappropriate, to lying with regard to, for example, what they considered the technicalities of the very obscure search and seizure rules.

This is just an example of a shadow vigilante who is frustrated by the systems, sort of an intentional failure of justice. This is how they respond. It’s not going out into the streets, and getting in fights, rather it is manipulating and distorting the system so that system will be more likely to impose the deserved justice that they think should be imposed.

TCR: Search and seizure rules are a point of contention between crime control and civil liberties advocates. What is your perpective?

Robinson: I would say, first, you can’t have a civilized, liberal democracy without having some form of Fourth Amendment that limits police intrusion in our personal lives. I mean that’s absolutely essential, and you need a way to enforce those rights. You can’t just have the Fourth Amendment on the books and then do nothing about it, so police are sort of free to intrude wherever they want, and though it’s a violation of the rules of the books, they can get away with it because there is no enforcement. There has to be some kind of enforcement mechanism. However, when we adopt the exclusionary rule as our enforcement mechanism [this] is a rule that on its face is designed to frustrate justice.

At the very least I would say this: every time we adopt a rule that we know is going to frustrate punishing people to the extent that they deserve it, no more, no less, every time we adopt a just as frustrating rule, we ought to understand that there is a hidden cost. That every time we do that the moral credibility of the system is undermined and people are going to be less likely to defer to it, to give it some kind of moral authority. Every time we approve these frustrating doctrines we are much more likely to inspire shadow vigilantes to feel morally justified in distorting the law to their own purposes.

I think it’s no coincidence that the Three Strikes doctrine, these mandatory minimums, are a problem that we currently have after a decade or more of the system’s reputation for letting people off on technicalities or tolerating really inconsistent sentencing where if you get the right judge you can walk away without no punishment at all. Once the system’s credibility for giving just punishment is undermined, well surprise, surprise, we know have these distortions in the other direction.

Part of the problem with shadow vigilantism is that it promotes a really damaging response. Once you have a system where everybody knows that there is this police “testilying,” everybody knows there are these mandatory sentences, and that these Three Strikes mechanisms are generating sentences that are well beyond what the community thinks is really just, once you have that kind of distorted system, are you surprised that there is then a backlash?

TCR: The Stop Snitching campaign arose from a mistrust of the police in some communities. Is that another example of the backlash you describe?

Robinson: The Stop Snitching campaign is a tragic development, because, of course, all it’s going to do is to reduce the effectiveness of crime control and make things worse, and increase victimization. It’s outrageous how the black victimization rates are dramatically higher. That’s a walking tragedy, but you can understand where Stop Snitching came from. You have a system that has a built-in police “testilying,” plus exaggerated punishment routinely under Three Strikes and mandatory minimums. Are we surprised then that there are some neighborhoods where the system is the enemy? No. The distortions that shadow vigilantism creates inspire its own backlash through Stop Snitching, and a lot of other ways that people think that they then have a reason to undermine the system further and it’s a downward spiral.

TCR: There is a lot of emphasis in the book on the failures of the criminal justice system being tied to offenders not receiving just punishment for crimes they committed, but the opposite argument can be made, that the U.S. criminal justice systems is one of the most punitive in the world. Can this in itself not be considered a failure of justice?

Robinson: Frankly, yes, I think that’s right. (Our system) tends to have exaggerated punishment at the high end, but in part I think that is a product of this shadow vigilantism distortion process that I talk about in the book. Having all those exaggerated penalties is a product in part of the frustration of the system not imposing punishment that was deserved. You know, we could have skipped that whole couple of decades where individual judges were free to just let murderers walk; well we could have saved ourselves a lot of the headaches that we have know with these crazy mandatory minimums.

TCR: What decades are you referring to?

Paul H. Robinson: Well, this is back in the 60s and 70s, before the advent of sentencing guidelines, there was an enormous amount of judicial discretion allowed. We thought it was quite justified. The problem of course was that a lot judges were quite idiosyncratic in both directions unfortunately, but the fact is that when ordinary people see that kind of disparity in sentencing, [they] are offended on both ends, and not just offended when somebody gets a lot more punishment than they deserve, they are also offended by people getting a lot less punishment than they deserve, and they are likely to react to what they see as the dysfunction in the process. One of the ways to react to people getting a lot less punishment than they deserve is to put in a set of mandatory minimums, which I think is tragic.

TCR: Do you think that the recourse to privatizing sectors of the criminal justice system leads to increased vigilantism? 

Robinson: There are many more private police than public police. We really have privatized policing in many areas. Certainly the motivation for hiring private police is that you don’t trust the public police, but there are unfortunate consequences that come from that, and one of the unfortunate consequences, of course, is that you can get effective policing only if you can financially afford it. If you can live in one of those communities that can afford private policing, well great, if you don’t, well then you’re screwed.

This is in part what contributes to the dramatic over-victimization of black communities. Most black neighborhoods are dependent on public policing. In a perfect world, we would have a public police department that was effective enough; in a criminal justice system with policing rules and exclusionary rules that cared enough about justice so that public police could be effective enough that everybody would find the services they offer to be acceptable. We’d have no further need for private policing and everybody was assured of that same minimum level of protection.

Julia Pagnamenta is a news intern with TCR. Readers’ comments are welcome.

from https://thecrimereport.org

Can Police Take a Juvenile’s DNA for ‘Investigative Purposes’?

A bill introduced by a California assemblywoman aims to stop the practice, currently followed by the San Diego Police Department—after a Voice of San Diego investigation revealed it.  It’s already illegal to collect DNA from minors without parental consent, a warrant or criminal conviction, but the San Diego cops argue that only applies if   they send the DNA to state or national databases.

A bill introduced Tuesday by California Assemblywoman Lorena Gonzalez Fletcher targets a San Diego Police Department policy that lets officers collect DNA from minors without the knowledge or consent of a parent or guardian.

The policy, privacy rights advocates argue, doesn’t jibe with state law, which strictly limits when police can obtain a DNA sample from a minor.

Absent a warrant or court order, only minors who’ve been found guilty of a felony or sexual offense must provide a sample. The San Diego Police Department (SDPD), though, believes it can collect DNA from a minor for “investigative purposes” — and without parental notification or consent — as long as the sample remains in a local database that isn’t linked to state or federal DNA databases.

Gonzalez Fletcher’s bill would require police to obtain a court order, search warrant, or the written consent of both the minor and the minor’s parent or guardian before DNA can be collected.

Voice of San Diego’s reporting prompted the bill, Gonzalez said, after a story about a group of black teens who were detained by police after a basketball game at the Memorial Park rec center, which is in Gonzalez Fletcher’s district.

Police searched the boys and swabbed each of their mouths for DNA after the search turned up an unloaded gun in one of the boy’s duffel bags. The gun was registered to another boy’s father.

Prosecutors charged one of the boys, referred to in court records as “P.D.,” with possessing a firearm. But a juvenile court tossed the case after officers admitted they lacked probable cause to search P.D.’s bag and had stopped the boys only because they were “black juveniles, some of whom were wearing blue, walking through a park in southeast San Diego on a particular day.”

Prior to his arrest, P.D. had no criminal record and had never been involved with a gang. None of the boys he was with had a criminal record or gang affiliation.

Gonzalez Fletcher said she thought about her own teenage son, who hangs out at the rec center.

“Our kids are good, or sometimes they’re not so good,” she said. “But you don’t think about, ‘Oh by simply wearing a blue sweatshirt and walking from the Memorial pool to the parking lot, he’s putting himself in a position where police can come and ask for a DNA swab.’”

Protecting the Privacy of Minors

She sees the bill as part of a larger push to protect the rights of minors during interactions with law enforcement. She pointed to a law passed last year, SB 395, that bars police from asking a child 15 or younger to waive his Miranda rights.

“I’ve been thinking a lot about the ways in which we haven’t protected our children when it comes to privacy,” she said. “Of course, it likely happens in over-policed communities like mine the most, and kids who are black and brown the most.”

Gonzalez Fletcher said from what she’s heard from other legislators, the San Diego Police Department’s DNA collection policy appears to be unique to San Diego.

“It seems like most jurisdictions, in fact, don’t do this,” she said. “But that doesn’t mean they couldn’t.”

The Assembly’s public safety committee will vote on the bill, AB 1584, this week. Gonzalez Fletcher said she’s not anticipating opposition.

The ACLU of San Diego and Imperial Counties is also challenging the department’s policy through a lawsuit stemming from the Memorial Park incident. In court filings, the ACLU is arguing that the policy “contains no protections to ensure a child’s consent is given knowingly and voluntarily” and “permits officers to obtain a minor’s consent in the same manner that they obtain an adult’s consent.”

It’s unknown how many DNA samples San Diego police have collected from juveniles. A department spokeswoman said they don’t track that information.

Bardis Valkili, the lead attorney in the ACLU lawsuit, said his organization hasn’t yet taken a formal position on AB 1584, since they only just found out about it last week.

“We’re obviously concerned about the issue of seizing DNA from minors,” he said. “Any legislation to address this issue is something we’ll be taking a strong interest in.”

The Crime Report is pleased to reprint this story, first published by Voice of San Diego, a partner in the Institute for Nonprofit News network. Sign up for VOSD’s newsletters here. Kelly Davis is a freelance journalist who focuses on criminal justice and social issues. A former John Jay Crime Reporting fellow, she has contributed previously to The Crime Report. Follow her on Twitter @kellylynndavis or send an email to kellydaviswrites@gmail.com. Readers’ comments are welcome.

from https://thecrimereport.org

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