Defense Says Case Threatens NY Prosecutor Accountability

Criminal defense lawyers groups and the Innocence Project challenge a ruling by a federal judge in Brooklyn that wrongfully convicted defendants can’t win suits against prosecutors by citing their supervision and training.

It is difficult for people convicted because of prosecutorial error to hold someone accountable for transgressions that sent them to prison. A federal appeals court in New York is considering a case that defense lawyers say could make challenges all but impossible, the New York Times reports. Under U.S. Supreme Court precedent, it is relatively easy to sue police officers who commit misconduct, but federal law provides prosecurors immunity from being sued if they make mistakes in the courtroom, even those that lead to wrongful convictions. The unjustly imprisoned in New York are barred from suing the state unless they can prove conclusively that they are innocent, not just the victims of an unfair trial.

A New York federal appeals court has upheld another way of holding prosecutors liable: suits against cities and counties alleging that a misstep was related to an administrative matter, like a hiring or a firing, or to an office-wide policy. A federal judge in Brooklyn ruled that the “supervision and training” of prosecutors were not administrative matters, but prosecutorial ones, so the city could not be held accountable. A coalition of defense lawyers argues that the ruling could stop people wronged by prosecutors from seeking any form of financial redress. The lawyers say it could cripple efforts to hold prosecutors responsible for ethical or legal violations. The ruling by judge Ann Donnelly, a former prosecutor, “threatens to eliminate (or, at the very least, substantially limit) municipal liability for prosecutorial misconduct,” says the Innocence Project and the National and New York State Associations of Criminal Defense Lawyers. The groups filed a brief backing Kareem Bellamy, who was found guilty of stabbing a man to death. After he spent 13 years in prison, a judge determined that someone else committed the murder and overturned the conviction.


FL Nursing Home Where 9 Died Might Avoid Prosecution

Gov. Rick Scott and relatives of those who died want criminal charges. Under Florida law, a conviction may be hard to obtain, former prosecutors say.

Nine elderly patients died after being kept inside a Florida nursing home that turned into a sweatbox when Hurricane Irma knocked out its air conditioning for three days, even though just across the street was a fully functioning and cooled hospital. From the perspective of Gov. Rick Scott and relatives of those at the Rehabilitation Center at Hollywood Hills, criminal charges are warranted. Under Florida law, a prosecution might be difficult. Two of three ex-state prosecutors the contacted by The Associated Press doubted that Dr. Jack Michel, the home’s owner, or any of his employees will be charged. All agreed that criminal prosecutions will hinge on whether the nursing home staff made honest mistakes or were “culpably negligent.” Florida defines that as “consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.”

The home has said it used coolers, fans, ice and other methods to keep the patients comfortable. That might be enough to avoid prosecution. “There is a difference between negligence, which is what occurs when you are not giving a particular standard of care vs. culpable negligence,” said David Weinstein, a former state and federal prosecutor. “So if they are doing everything humanly possible given the circumstances and this all still happened it may be negligent and provide the basis for a civil lawsuit, but not enough for criminal charges.” Former U.S. Attorney Kendall Coffey disagreed. “Given the magnitude of the tragedy and the apparent availability of a hospital 50 yards away, prosecutors are not going to accept that this was an unavoidable tragedy,” he said.



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Why Justice System is Reluctant to Admit It’s Wrong

No one tracks how often the wrongly convicted are pressured to accept plea deals in lieu of exonerations. In Baltimore City and County alone—two separate jurisdictions with their own prosecutors—ProPublica identified at least 10 cases in the last 19 years in which defendants with viable innocence claims ended up signing “Alford” pleas or time-served deals.

Ever since DNA ushered in a new era in criminal justice, even the toughest law-and-order advocates have come to acknowledge that some innocent people are locked away for crimes they didn’t commit. Less widely understood is just how reluctant the system is to righting those wrongs, The Atlantic and ProPublica report. Courts assess guilt or innocence only before a conviction. After that, appellate courts focus solely on fairness. In each case, exculpatory evidence was uncovered, persuasive enough to garner new trials, evidentiary hearings, or writs of actual innocence. No one tracks how often the wrongly convicted are pressured to accept plea deals in lieu of exonerations. In Baltimore City and County alone—two separate jurisdictions with their own prosecutors—ProPublica identified at least 10 cases in the last 19 years in which defendants with viable innocence claims ended up signing “Alford” pleas or time-served deals.

Prosecutors defend the convictions, arguing that the deals were made for valid reasons—such as the death of a key witness or a victim’s unwillingness to weather a retrial. The current state’s attorney in Baltimore County, Scott Schellenberger, said “prosecutors take their oath to get it right very seriously” and wouldn’t stand in the way of exoneration if the facts called for it. The menace of such deals is clear: At worst, innocent people are stigmatized and unable to sue the state for false imprisonment, prosecutors keep unearned wins on their case records, and the real suspect is never brought to justice. The pleas in two Baltimore cases were later overturned after misconduct was uncovered in the original convictions, and the men won full exonerations. One, Walter Lomax, a black man convicted by an all-white jury shortly after the 1968 race riots in the city, served 38 years of a life sentence before taking a time-served deal in 2006. The state didn’t concede he was innocent until 2014. Lomax called it “horrible when it becomes obvious the person is innocent and the state won’t at the very least acknowledge that.” Some legal and cognitive-science experts suggest that once detectives and prosecutors commit to a suspect and a theory of the crime, it changes how they evaluate evidence, and then the system itself exacerbates that focus at every step.


ACLU Launches “MeetYourDA” Campaign in California

With help from tech companies in Northern California, the American Civil Liberties Union starts a website designed to help the public learn what their district attorney does.

Many people don’t pay much attention to their district attorneys, let alone realize they are elected officials, says Ana Zamora of the American Civil Liberties Union of Northern California. That was the genesis for MeetYourDA, a campaign that started this week. It aims to hold California district attorneys accountable to criminal justice reform and put district attorney races on the map, Zamora said. MeetYourDA, a collaborative effort between the ACLU and Elefint Designs, makes it easy for constituents to learn who their county’s district attorney is and how they stand on certain policy issues, reports TechCrunch. Through the MeetYourDA platform, constituents can easily contact their DAs.

The  project came about through a “design sprint,” dubbed Desgnit, over Memorial Day weekend where a group of product designers from Facebook, Glassdoor and other tech companies volunteered their time to help the ACLU. The site starts with a motion graphic narrated by Grammy award-winning artist John Legend. Legend explains what a DA does, describing them as the most powerful elected officials you probably didn’t know about.  “People … believe that the job of a DA and/or prosecutor is to send people to jail or prison,” says Zamora. “We’re pushing back on that as a myth because a DA is a public servant and their job is to seek justice and not to put people behind bars.”


Prosecutors Drop Demand for Inauguration Protest Data

Federal prosecutors had asked for 1.3 million IP addresses for people who visited a website aimed at protesting President Trump’s inauguration. The government now says it is seeking only evidence of a “premeditated riot” on Inauguration Day.

Federal prosecutors have dramatically narrowed their demands for information about a website used to organize protests of President Trump’s inauguration, Politico reports. Privacy advocates and civil liberties groups had complained that a search warrant a Washington, D.C., judge issued last month for data about the website was wildly overbroad and could have swept up data on thousands of people who simply visited web pages about anti-inaugural activities. The U.S. Attorney’s Office for the District of Columbia said “factual revelations” led them to drop a demand for visitor logs and to limit the government’s demand for other data to July 2016 through Inauguration Day.

DreamHost said the original demand appeared to cover 1.3 million IP addresses relating to visits to the disruptj20 site from Jan. 23 to Jan. 28. Prosecutors now say they are trying to investigate violence and property damage that took place on Jan. 20 as part of a “riot” just prior to Trump’s inauguration. The prosecution insists it is not trying to chill the activities of law-abiding demonstrators. “The government values and respects the First Amendment right of all Americans to participate in peaceful political protests and to read protected political expression online,” prosecutors wrote. “This Warrant has nothing to do with that right. The Warrant is focused on evidence of the planning, coordination and participation in a criminal act – that is, a premeditated riot. The First Amendment does not protect violent, criminal conduct such as this.”


How Milwaukee Fights Intimidation of Witnesses

When a man was killed in 2007 after he resisted threats and bribes and testified against a man who had shot him, District Attorney John Chisholm created a team of investigators to target people who threaten witnesses. The Milwaukee Journal Sentinel tells how the effort has worked, in a six-part series.

During the violent summer of 2015, when the number of homicides in Milwaukee soared to a high not seen since the early 1990s, one man set off a cascade of violence by trying to methodically eliminate witnesses he believed had cooperated with police to put him behind bars. It was only one of a number of high-stakes witness intimidation cases in Milwaukee County, reports the Milwaukee Journal Sentinel in a six-part series. In the past two years, prosecutors have filed charges in at least five homicides, five attempted homicides and two conspiracies to commit a homicide, all cases involving efforts to silence a witness. In 2015, prosecutors charged nearly 190 people with witness intimidation, a 250 percent increase from a decade before, a Journal Sentinel analysis of court data found. Those cases resulted in a lower rate of dismissals, more convictions, and longer sentences than those issued in 2005.

Milwaukee County underwent a fundamental shift in witness protection tactics after the 2007 murder of Maurice Pulley Jr., who was killed after he resisted threats and bribes and testified against a man who had shot him. Vowing to beat back such brazen efforts to undercut justice, District Attorney John Chisholm created a team of investigators to target people who threaten witnesses. The team has grown to seven investigators who work closely with sheriff’s deputies and local police. Using specialized software that flags cases where intimidation is likely, the investigators pore over recorded jail calls and online social networks. They stake out courtrooms looking for any sign of intimidation: a gesture in the court gallery, a photo taken of someone on the witness stand or chatter of someone not showing up in court. They’ve had successes, but the volume of cases makes it difficult for investigators to keep up. “No face, no case,” is still a common saying for those behind bars.


NYC Dismissal of 644,000 Warrants Lauded by NY Times

Newspaper says the mass expungement is an indictment of the city’s summons system. The Times urges the city’s prosecutors to wipe out the records of others “who may have been unjustifiably caught in the zero-tolerance dragnet.”

The New York Times praises New York City prosecutors in an editorial for their action this week dismissing 644,000 outstanding arrest warrants stemming from minor offenses at least 10 years old, more than a third of the city’s 1.6 million outstanding summons warrants. The newspaper noted that the city already had scaled back its practice of stopping and frisking people in high-crime neighborhoods. It has reduced the number of people prosecuted on minor marijuana charges. The warrant backlog stems from that the Times calls “the now-discredited belief that petty offenses, like riding a bike on the sidewalk or drinking in public, could lead to more serious crimes.” Minority neighborhoods were blanketed with criminal summonses that forced hundreds of thousands of people to live with a constant threat of jail time for minor infractions.

Now, the city has encouraged officers to shift many common petty offenses into civil court, where people can avoid criminal records and can sometimes make amends through community service. In 2009, at the height of zero-tolerance policing, the city handed out more than 500,000 summonses, compared with about 268,000 last year. People who forget court dates for offenses like littering are subject to arrest warrants that can land them in jail for days the next time they encounter a police officer in, say, a routine traffic stop. Warrants can also make it difficult to find jobs or get apartments. Immigrants can be denied citizenship applications or be deported. The new “mass expungement” is an indictment of the summons system itself, the Times says. It urges the city’s prosecutors to to expunge the records of others “who may have been unjustifiably caught in the zero-tolerance dragnet.”


The ‘Age of the Plea Bargain’ in U.S. Criminal Justice

With 94 percent of state felony cases ending in guilty pleas, there are few trials in the U.S., and guilty pleas keep the machinery of justice running smoothly.

This is the age of the plea bargain in U.S. courts. Most people adjudicated in the criminal justice system waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—94 percent at the state level, and 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, The Atlantic reports, and they reveal a stark truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy, quoting a a law-review article, wrote, “ ‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’ ”

Legislators have criminalized so many behaviors that police are arresting millions of people annually—almost 11 million in 2015. Taking to trial even a significant proportion of those who are charged would grind proceedings to a halt. Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania, says the criminal-justice system has become a “capacious, onerous machinery that sweeps everyone in,” and plea bargains, with their swift finality, are what keep that machinery running smoothly. Plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society, or whose “crime” may primarily be a matter of suffering from poverty, mental illness, or addiction.


New NY Push to Increase Prosecutors’ Disclosure

New York is one of 10 states where prosecutors can wait until just before trial to share evidence with defendants and their attorneys. Suspects may be pushed to enter plea deals without knowing the extent of the evidence against them. The state bar association, the Legal Aid Society and the Innocence Project are seeking a law requiring earlier disclosure.

New York is one of 10 states where prosecutors can wait until just before trial to share evidence with defendants and their attorneys. The result is that suspects often are pushed to enter plea deals without knowing the extent of the evidence against them, reports the New York Times and The Marshall Project. In some cases, the name of an accuser is withheld until the eve of trial.

For decades, legislation to require prosecutors to turn over evidence earlier has run into stiff opposition from district attorneys, who cite the need to protect witnesses. More than a dozen such bills have failed in the past quarter-century. The politics show signs of shifting. A new effort is underway to overhaul state discovery rules, following the example of traditionally more conservative states such as North Carolina and Texas. The New York State Bar Association for the first time is backing a bill requiring prosecutors automatically to turn over police reports, witness names and statements, and grand jury testimony early in a case. The measure is backed by the Legal Aid Society and the Innocence Project, a nonprofit that helps exonerate people who have been wrongly convicted. It faces a difficult road. There is no companion bill in the Senate, and Gov. Andrew Cuomo has not embraced the idea.