Is New St. Louis Prosecutor Falling Short as Reformer?

St. Louis chief prosecutor Kim Gardner campaigned as a criminal justice reformer, but “her approach has been, when in doubt, lock them up,” says a recently departed staff member.

Campaigning as a criminal justice reformer, former Missouri state Rep. Kim Gardner easily won the 2016 election to replace Jennifer Joyce, who was leaving her post as the St. Louis’s top prosecutor after sixteen years. Across the U.S. a new wave of prosecutors had just begun to roll into office on progressive promises to tackle issues such as mass incarceration and cash bail. Backed by a network of activists, Gardner became the first black circuit attorney in city history, the Riverfront Times in St. Louis reports.

Many staffers assumed that a reform-minded prosecutor with an interest in ending mass incarceration would be more receptive than Joyce in re-evaluating cases they considered problematic or short on evidence. Instead, one of their first direct messages from Gardner was a staff-wide email chastising prosecutors for what she saw as a disturbing trend of staffers trying to reduce charges or dismiss cases.  “When Kim is referred to as a progressive prosecutor it makes me cringe,” one recently departed staffer says, adding, “Her approach has been, when in doubt, lock them up.” Another ex-prosecutor says Gardner and her executive staff seemed overly sensitive to the suggestion that they would go easy on criminals. “I think she knew that that’s what people thought, and she was doing everything in her power not to appear soft on crime,” the former staffer says.

from https://thecrimereport.org

Is New St. Louis Prosecutor Falling Short as Reformer?

St. Louis chief prosecutor Kim Gardner campaigned as a criminal justice reformer, but “her approach has been, when in doubt, lock them up,” says a recently departed staff member.

Campaigning as a criminal justice reformer, former Missouri state Rep. Kim Gardner easily won the 2016 election to replace Jennifer Joyce, who was leaving her post as the St. Louis’s top prosecutor after sixteen years. Across the U.S. a new wave of prosecutors had just begun to roll into office on progressive promises to tackle issues such as mass incarceration and cash bail. Backed by a network of activists, Gardner became the first black circuit attorney in city history, the Riverfront Times in St. Louis reports.

Many staffers assumed that a reform-minded prosecutor with an interest in ending mass incarceration would be more receptive than Joyce in re-evaluating cases they considered problematic or short on evidence. Instead, one of their first direct messages from Gardner was a staff-wide email chastising prosecutors for what she saw as a disturbing trend of staffers trying to reduce charges or dismiss cases.  “When Kim is referred to as a progressive prosecutor it makes me cringe,” one recently departed staffer says, adding, “Her approach has been, when in doubt, lock them up.” Another ex-prosecutor says Gardner and her executive staff seemed overly sensitive to the suggestion that they would go easy on criminals. “I think she knew that that’s what people thought, and she was doing everything in her power not to appear soft on crime,” the former staffer says.

from https://thecrimereport.org

Prosecution Reform: A Win in Boston, Losses in CA

Rachael Rollins, who won last week’s primary for district attorney in Boston, ran on ending “mass incarceration.” Reformers have won in other major cities but lost three races in California.

Rachael Rollins, who won last week’s primary for district attorney of Suffolk County in Boston, ran on ending mass incarceration and cutting off relations between Boston and the Immigration and Customs Enforcement agency. If Rollins defeats her independent opponent in a general election that has no GOP candidate, the county’s nearly 800,000 residents will have a prosecutor intent on remaking the criminal justice system: No more cash bail, no more civil asset forfeiture, no more racial disparity in who does and doesn’t go to jail, the Washington Post reports. Rollins told the Post, “There are certain charges that I don’t want to prosecute any longer. Those are overwhelmingly the charges that fall on the mentally ill and those with substance abuse disorder.”

Rollins is the latest in a string of reform-minded candidates who will be district attorneys in deep-blue cities that, for years, elected Democrats who ran on “law and order” platforms. The effort to elect them has succeeded in Chicago, Philadelphia and St. Louis and failed in other blue cities. It’s created a blueprint for electing reformist prosecutors and for shaping their agendas. Civil rights activist Shaun King co-founded a political PAC, Real Justice, working to elect more reformers. The early results were encouraging. In Texas’s March primaries, Real Justice fell just short in a Dallas County race but won in San Antonio’s Bexar County. The PAC’s next big projects were in California, where four deep-blue counties — Alameda, Contra Costa, Sacramento and San Diego — were electing or nominating prosecutors. In June, all but one candidate — Contra Costa’s Diana Becton — lost. The Real Justice-backed candidate in Alameda, Pamela Price, was surprised to see her county — anchored by the left-wing bastions of Oakland and Berkeley and rattled by police shootings — stick with the old system.

from https://thecrimereport.org

VA Requiring Prosecutors To Give Defense More Info

The Virginia Supreme Court amended the state’s rules of criminal procedure to require prosecutors to allow defendants to review — but not copy — all relevant police reports in a case and all witness statements. Chief Justice Donald Lemons said, “It was long overdue.”

For defendants facing a criminal trial in Virginia, there is no requirement that prosecutors provide police reports, witness statements or a witness list to the defense team. Some prosecutors do it anyway; some do not. After years of study and debate, the state Supreme Court will soon mandate that prosecutors share details of their case with the accused, reports the Washington Post. The court this week amended Virginia’s rules of criminal procedure to require prosecutors (called commonwealth’s attorneys) to allow defendants to review — but not copy — all relevant police reports in a case and all witness statements.

In addition, prosecutors will be required to provide to the defense a list of names and addresses of all witnesses expected to testify at trial or sentencing, though addresses and other identifying information may be withheld if approved by a judge. The prosecution also must notify the defense if it intends to call any expert witnesses and provide their qualifications and expected testimony, as is done in civil cases but was not required in criminal cases. “This is a huge deal,” said defense lawyer Alex Levay, a member of task forces that have pushed for reform since the 1990s. “This is a huge step forward for justice and fairness and providing the information that everyone should be provided when their liberty is at stake.” Chief Justice Donald Lemons said, “It was long overdue and it’s finally here.” He said that as a private attorney, “I handled criminal defense cases, and I do understand the dilemmas.” Prosecutors who have complained that they must reveal their own cases while defendants may keep their case secret got a boost from the Supreme Court: Defendants now must provide their expected witness list to the prosecution.

from https://thecrimereport.org

Some Charges Dismissed in NM Compound Case

Three defendants were dropped in the lurid case of a New Mexico compound when prosecutors failed to schedule a court hearing. Two others remain charged. Prosecutors said they found a document called “Phases of a Terrorist Attack.”

Judges dismissed charges Wednesday against three defendants in the New Mexico compound case that has drawn headlines for weeks for its lurid and racially charged details, in a major blow to the prosecution, the Washington Post reports. Judge Emilio Chavez said that he had no choice but to release three defendants because the office of District Attorney Donald Gallegos failed to schedule a court hearing to prove they had probable cause for their arrest within 10 days, as state rules stipulate. “For whatever reason, the state did not obtain a preliminary hearing date within 10 days,” said public defender Aleksander Kostich. “It’s absolutely bizarre.”

The developments were the latest twist in the case, which has drawn attention since the ramshackle rural plot in Amalia, which consisted of a trailer dug into the ground and surrounded by old tires and an underground tunnel, was raided on Aug. 3. The combination of its lurid details — law enforcement officials said they found 11 children, as well as the body of a three-year-old boy. Accusations made in court by prosecutors but cautioned against by a judge that the defendants were Muslim extremists engaged in a terrorist training camp of sorts brought the case to wide national prominence. Two defendants, Siraj Wahhaj and Jany Leveille, pleaded not guilty to new charges, according to the Associated Press. AP reported that prosecutors said they found a handwritten document called “Phases of a Terrorist Attack” at the compound. In other filings, prosecutors alleged that children had told them that some of the adults at the compound had talked about dying in jihad.

from https://thecrimereport.org

Elder Abuse: When Victims Balk, Should Prosecutors Press Charges?

Elders are often reluctant to press charges for abuse because they don’t want to lose the support of caregivers—even if those caregivers were responsible for the abuse—but prosecutors should try to persuade them otherwise, say some advocates. “A good prosecutor will do everything they can to try and persuade the victim to go forward with the case,” says Oregon Attorney General Ellen Rosenblum.

When  Rita Armaganian went to visit her 80-year-old next-door neighbor, Hilda Bassett in Warwick, R.I., she noticed a small spot of blood on Hilda’s cheek and a large bruise. Her glasses lay broken. Bassett admitted that her daughter had slapped her in the face. The victim eventually provided a statement, and the daughter was charged.

But three weeks later, Rhode Island prosecutors dismissed the case “in the interests of justice.”

The 2007 case underlines a poignant fact: elders are often reluctant to press charges for abuse because they don’t want to lose the support of caregivers—even if the caregivers were responsible for the abuse, reports the Providence Journal.

And authorities and advocates for the elderly generally defer to the victims.

“The victim, unfortunately, will often try to protect the perpetrator of the crime because it’s someone they love or want to love, and these are often the people taking the most advantage of them,” according to Oregon Attorney General Ellen Rosenblum.

Oregon’s Department of Elderly Affairs handles such cases, and five investigators each handle 30 to 35 cases monthly.

“We can’t force services upon elder adults,” said supervisor Boakai Kamara, nor can they require cooperation with the police. “They have the right to say no if they want to live with the person who is abusing them.”

In cases where the perpetrator is the victim’s only caregiver, pressing charges can mean losing the victim’s sole support. Caregivers have “a lot of influence,” said Julie Schoen of the National Center for Elder Abuse at the University of Southern California.

“And that’s what the person will use against [the elder]. It’s very understandable how it happens.”

Rosenblum said that in abusive relationships, not prosecuting a case can leave the elder in a dangerous situation. “I’ve seen situations where people didn’t want to prosecute, and it has happened again and again … it really puts the victim at extreme risk,” she said. “(Good prosecutors) will do everything they can to try and persuade the victim to go forward with the case.”

See Also:  Elder Abuse: The Almost Invisible Crime

from https://thecrimereport.org

Many Elderly Abuse Victims Refuse to Prosecute

“We can’t force services upon elder adults,” said Boakai Kamara, who handles abuse cases in Rhode Island. Nor can case workers require cooperation with the police. “They have the right to say no if they want to live with the person who is abusing them.”

Authorities and advocates for the elderly generally defer to victims who don’t want to press charges against their abusers, reports the Providence Journal. Example: one woman visited her 80-year-old next-door neighbor and noticed a spot of blood on her cheek, a large bruise, and broken glasses. The neighbor admitted that her daughter had slapped her in the face. The victim eventually provided a statement, and the daughter was charged. Three weeks later, prosecutors dismissed the case “in the interests of justice.” The state’s Department of Elderly Affairs handles such cases, and five investigators each handle 30 to 35 cases monthly. “We can’t force services upon elder adults,” said supervisor Boakai Kamara, nor can they require cooperation with the police. “They have the right to say no if they want to live with the person who is abusing them.”

Many elders are hesitant to cooperate with law enforcement. As Oregon Attorney General Ellen Rosenblum explained, “The victim, unfortunately, will often try to protect the perpetrator of the crime because it’s someone they love or want to love, and these are often the people taking the most advantage of them.” In cases where the perpetrator is the victim’s only caregiver, pressing charges can mean losing the victim’s sole support. Caregivers have “a lot of influence,” said Julie Schoen of the National Center for Elder Abuse at the University of Southern California. “And that’s what the person will use against [the elder]. It’s very understandable how it happens.” Rosenblum said that in abusive relationships, not prosecuting a case can leave the elder in a dangerous situation. “I’ve seen situations where people didn’t want to prosecute, and it has happened again and again … it really puts the victim at extreme risk,” she said. “A good prosecutor will do everything they can to try and persuade the victim to go forward with the case.”

from https://thecrimereport.org

Cuomo Pressured to Create Prosecutor Misconduct Panel

A coalition of more than 100 groups and individuals—including 16 who were wrongfully convicted —are urging New York Gov. Andrew Cuomo to sign a bill that would create a prosecutorial misconduct commission. The legislature voted to set up the panel over objections of district attorneys.

A coalition of more than 100 groups and individuals—including 16 who were wrongfully convicted —are urging New York Gov. Andrew Cuomo to sign a bill that would create a prosecutorial misconduct commission, the New York Daily News reports. The legislature passed a bill this year over objections of district attorneys but with strong bipartisan support to create the commission. The coalition, known as It Could Happen To You, The coalition says New York in 2017 had the nation’s fourth highest number of exonorations. “There remains no viable process for holding accountable prosecutors who break the rules,” the coalition told Cuomo.

The commission would have oversight of the state’s 62 county district attorneys and could recommend anything from censure to removal if they find wrongdoing on the part of a prosecutor. The coalition who signed on to the letter include those wrongly prosecuted, public defenders, and criminal justice reform organizations. Among the groups on the letter are the Jeffrey Deskovic Foundation for Justice, Rev. Al Sharpton’s National Action Network, and Robert F. Kennedy Human Rights. Cuomo has until Aug. 20 to act on the bill. The state District Attorney’s Association has said the bill is unconstitutional and wants Cuomo to veto it.

from https://thecrimereport.org

Memo to Prosecutors: Listen to the People You Punish

 While there are good constitutional reasons for barring prosecutors from speaking directly with defendants without their attorneys’ permission,  it shouldn’t prevent them from trying to understand the lives and perspectives of those most affected by what they do, writes a former assistant district attorney.

You don’t expect to hear much from somebody who has been told “anything you say can and will be used against you.”

Indeed, a defendant’s voice is usually only raised after it is safely behind the wall of attorney-client privilege. 

 And so, while the right to remain silent is a vital protection guaranteed by our justice system, it has the unfortunate side effect of ensuring that prosecutors are never in a position to hear about—or truly understand—the lives of those they prosecute.

Prosecutors are barred from speaking directly with any defendant represented by counsel without the permission of that attorney. As a result, to the extent that any information is exchanged, it is usually with defense counsel acting as intermediary in a bad game of telephone that tends to strip nuance and humanity from the narrative.

This makes it all too easy for a prosecutor to regard a defendant as little more than a name on a case file.

A welcome crack in this wall of silence was made at Suffolk County, Mass., recent district attorney candidates’ forum at the Suffolk County House of Correction. Potentially the first of its kind, this event flipped the usual script by placing incarcerated individuals in the questioner’s chair, allowing them to force the candidates to consider prosecutorial objectives and actions from the viewpoint of the prosecuted.

Such perspectives tend to be lost when it is time for prosecutorial policy to be made, and justice suffers for it. Surrounded by police officers and victims, and operating in an environment that too frequently speaks in terms of binary outcomes— guilty or not guilty—it can be easy to forget that while our system may be adversarial, that should not apply to rehabilitation.

If these district attorney candidates are serious about preventing future crimes, not simply punishing past ones, then they cannot lose sight of this goal.

Advancing policies with a more cooperative focus, including diversion programs that provide alternatives to the criminal system, is key to realizing this objective. Similarly, district attorneys have incredible authority and discretion to shape the dispensation of justice within the system through charging, bail, and sentencing guidance.

Thoughtful and nuanced policies can help reinforce for prosecutors that the institutional ideal is justice, not convictions, and that the two are not always one and the same.

Of course, there are also limits on the ability of district attorneys to control events, even within their own offices. Especially in Massachusetts’ district courts, which handle around 170,000 cases annually involving misdemeanors and less serious felonies, cases come too fast and justice is meted out too messily for top down decision making to be effective.

This is why district attorneys must work to ensure that even their newest assistant district attorneys are exposed to training and experiences that will better help them view cases in shades of gray rather than black and white.

As basic and blunt a measure as it may seem, leaders should encourage—if not outright mandate—that all new assistant district attorneys visit their local jail and experience, if only briefly, the nature of that confinement. With the wisdom of hindsight, it now seems like borderline malpractice that I could have argued for years as an assistant district attorney in Essex County to send people to a jail I had never even seen.

While this oversight speaks to my own shortsightedness, it also points to a greater institutional failing given that my experience—or lack thereof— was hardly an outlier in the office.

Trust is, understandably, difficult to come by in the criminal justice system. As such, it is hard to fault a defense attorney who counsels his or her client to remain tight lipped in the presence of the prosecutor. Indeed, in many instances, this will be the best course of action.

For some, particularly more minor crimes, however, the defense may find value in opening a dialogue with the other side.

Rarely did I ever encounter a more powerful advocate than a defendant himself. Not in terms of legal arguments—I saw plenty of proof of the old maxim “a man who is his own lawyer has a fool for his client” —but in the ability to provide context to actions and depth to characters. These encounters often favorably shaped my view of the defendant in a given case and even helped, over time, to shift my approach to prosecution.

One debate in a Suffolk County jail may not fundamentally alter how these prospective district attorneys act once in office, but forcing them to consider the viewpoints of incarcerated individuals is an important first step toward piercing the insular nature of prosecutorial culture.

Lars Trautman

Lars Trautman

The more that can be done to reduce the inherent, silent “othering” of criminal defendants, the closer the justice system will come to living up to its name.

Lars Trautman is a senior fellow at the R Street Institute. He previously served as an assistant district attorney in Essex County, Massachusetts.

from https://thecrimereport.org

St. Louis County Winner: Ferguson Was Only Part of Story

Wesley Bell, who unexpectedly toppled 28-year St. Louis County Prosecutor Robert McCulloch, says he campaigned on a message of “addressing inequities throughout St. Louis County.”

Wesley Bell, who defeated St. Louis County Prosecuting Attorney Robert McCulloch in his 28th year in office, credited engaged volunteers, a face-to-face ground game and a message that reached voters of all backgrounds to help him win a stunning upset in Tuesday’s Democratic primary, the St. Louis Post-Dispatch reports. “We made a point of trying to bring people together,” Bell said. “Our message was about addressing inequities throughout St. Louis County to make sure everyone is treated fairly, and that message resonated with people.” Political observers had doubted Bell’s chances of toppling the longtime incumbent, but the race wasn’t close. Bell, 43, a second-term Ferguson councilman, got 57 percent of the vote, tallying 24,084 more votes than McCulloch. With no candidate from any other political party in the race, Bell will run unopposed in November.

McCulloch, 67, has faced mainly token opposition since he first won office in 1990. Bell was McCulloch’s first challenger since the 2014 Ferguson protests over the  2014 killing of 18-year-old Michael Brown by a police officer. After Brown was killed, as protests erupted daily for weeks, McCulloch’s office presented witnesses to a grand jury and later faced criticism over the witnesses he allowed to testify. He later announced the decision not to indict Ferguson officer Darren Wilson. Bell said tying his victory only to Ferguson failed to explain the effectiveness of his campaign. “That’s the easy narrative to fall back on,” Bell said. “For six months, our message was about inclusion.” Political scientist E. Terrence Jones of the University of Missouri-St. Louis said that Bell “showed a tremendous ability to mobilize millennials and get them involved in the race, which enabled him to close much of the financial gap between himself and Bob McCulloch.”

from https://thecrimereport.org