White-Collar Crime: Keeping Cases Out of the Courtroom

A white-collar defense attorney explains how “pro-active” engagement with prosecutors has helped his clients avoid going to trial or at least present evidence that could change a case’s outcome. He calls it “trying a case in a prosecutor’s office.”

Several years ago, a philatelist was being investigated for securities fraud based on an alleged false valuation of collectible stamps that were used as collateral for investments.

At a meeting with a formidable team of agents, prosecutors and Securities and Exchange Commission litigators, the client made a presentation describing how these stamps are valued, auctioned, privately sold, etc. The presentation included exhibits from auction house catalogues, completed sales and commercial offerings for sale and purchase.

Weeks passed while the government digested the materials.

Eventually, the government team decided that the art of valuing collectible stamps was too subjective to be amenable to a “beyond a reasonable doubt” analysis and did not bring the prosecution.

That points to an unassailable truth. The best result possible for the target of a criminal investigation is never to be charged with a crime.

Law is like medicine in that regard: The earlier you are involved in a case, the more opportunities exist to cure or restrain the spread of the disease.

When and how much engagement is appropriate depends on the particular circumstances of each matter. There is no one-size-fits-all strategy.

As soon as the authorities are aware that your client is represented by counsel all attempts to contact him, get statements and physical evidence directly will cease. Montego v. Louisiana holds that all contact by the authorities with a person must cease upon his invocation of his desire to be represented by counsel.

Not only does this eliminate the potential of harmful statements being secured, it also protects the client from unwelcome and unpleasant encounters with the authorities.

Once a relationship is established with the prosecution, a request to be allowed to present evidence to the grand jury should be instituted.

Department of Justice regulations require that a prosecutor put substantial evidence which negates guilt before a grand jury. [DOJ Manual §9-11, 122(a) 9-268 (1992-1 Supp.)] In New York, a demand to be a witness before a grand jury when “a person is being or is about to be or has been submitted to a grand jury…” must be honored [CPLR 190.50 5(a)].

This will result in learning whether or not a grand jury is considering the matter and if so an opportunity to influence its outcome. Whether or not one actually makes such a presentation is again fact-specific.

Since grand juries are totally controlled by the prosecutor, a determination always has to depend on the nature and quality of the evidence, and whether it is better to be withheld and used later, or if it could have an effect on the proceeding.

In addition to the grand jury aspect of the investigation, a proactive relationship with the prosecution can result in making an attorney’s proffer to wit: meeting with them and putting forth evidence that will benefit the client. The proffer is pursuant to an agreement that nothing put forth by the attorney can be used as evidence by the prosecution in their case.

However, leads from such information can be used to find additional evidence. Therefore, it is essential that only exculpatory information be transmitted.

Such engagement during the investigative stage is akin to “trying the case in the prosecutor’s office.” Supplying them with exculpatory evidence creates a broader understanding of the facts, and increases the prosecution’s awareness of the difficulties they will have in proving their case as well as making them aware of any mitigating circumstances that are favorable to the client.

Another of our clients was arrested by a police officer who saw a gun protruding from under his jacket as he was walking down the street. After stopping him and determining that he did not have a license to carry a weapon he was arrested. The DA believed this was a slam dunk for conviction.

But after agreeing to our request to allow the defendant to testify in the grand jury no charges were brought. The client testified that he had been visiting an apartment building he owned where he found the gun in a garbage can and was on his way to the police precinct to turn it in, when stopped by the police officer.

After hearing his testimony, the grand jury refused to indict.

Since this testimony would have been the same at trial there was nothing to lose by putting it before the grand jury.

Proactive engagement during the investigative stage requires balancing whether or not the information put before prosecutors is better saved for trial. This is often determined by whether you believe that advance notice of the information will give the prosecution time to develop a way to ameliorate the effectiveness of it.

For example, making a potential witness available to the prosecution will give them time to investigate that person as well as lock them into statements. On the other hand, if the statements they make will be the same at trial and an investigation will be favorable to the client, this may have a salutary effect.

In the event charges are brought (often less than originally intended), one can usually work out a surrender of the client to the authorities. This avoids the embarrassment of a public arrest at home or the work place. A voluntary surrender also will be considered by the Court as evidence that the client has shown his intent to abide by the Court’s orders and is not a bail risk.

Title 18 §3142(9) 3A includes the factors to be considered for bail, and there are conditions of release…” that will reasonably assume the appearance of the person…” the “…record concerning appearance with court proceedings;”.

This is typically reflected in low bail as part of the surrender package. In addition to decreasing the amount of time the client spends incarcerated upon arrest, it can also affect geographic, economic and other terms and conditions of bail.

By interacting with the prosecution during the investigation we often receive early discovery.

In addition to being able to rebut and/or explain such information to the investigators, the building blocks to a trial defense including finding fact witnesses, documents and expert testimony can begin.

Another positive affect of pre-arrest negotiations is discovery of the prosecutor’s case at the earliest time. This allows for informed decision making i.e. whether or not to accept a plea deal or move forward to trial is always best decided early.

A better deal is typically available early in the process.

Knowing the prosecutor’s case helps determine whether the matter can be put to trial when balancing it against the plea offer. Even when the prosecution decides to move forward with charges, they will often offer a much more reasonable resolution based on the information they received from the defense.

In most white collar prosecutions, the defendant’s state of mind is a relevant factor.

In Elonis v. United States (2018) Chief Justice John Roberts wrote that” the basic principle that ‘wrongdoing must be conscious to be criminal’ and that a defendant must be “blameworthy in mind before he can be found guilty.”

After Elonis, it remains “the general rule” that evidence that a defendant acted with “a guilty mind” is “a necessary element in the indictment and proof of every crime” even if a statute omits that element. [Source: The Supreme Court on Mens Rea: 2008-2015 by Paul Yarkin, Jordan Richardson and John Michael Seibler.]

Usually the government uses circumstantial evidence to support a mens rea requirement. If an attorney senses that the prosecution is having trouble with this issue, it may be wise to have the client submit to a private polygraph test.

The attorney can then determine whether or not to use the result based on the polygrapher’s report. While such evidence is not admissible, a favorable result often convinces the investigators that the client was not acting with bad motives.

Jeffrey Hoffman

Jeffrey C. Hoffman

This results in a more critical re-evaluation of the evidence supporting the case and often results in a better disposition.

In short, “early diagnosis and treatment” will result in the best outcome.

Jeffrey C. Hoffman is Counsel at Windels Marx, a Manhattan-based law firm. He has been involved in a large number of white collar cases, including banking fraud, money laundering and Medicare/Medicaid fraud. Readers’ comments are welcome.

from https://thecrimereport.org

AZ Prosecutor Seeks to Control Police Record Release

The chief prosecutor in Phoenix, Maricopa County Attorney Bill Montgomery, says he will control whether police records are released to the public or withheld. He warns of financial consequences for police departments that don’t comply. 

The chief prosecutor in Phoenix, Maricopa County Attorney Bill Montgomery, says he will control whether police records are released to the public or withheld. He warns of financial consequences for police departments that don’t comply, the Arizona Republic reports. A letter from Montgomery to police agencies makes no direct mention that long-standing Arizona law and court rulings hold police records to be presumed public. It spells out a process to limit release of video evidence only for law-enforcement purposes, and describes how prosecutors will pursue protective orders from judges to help keep records private. State law allows anyone who is denied access to a public record to challenge the decision in court. Montgomery promises police agencies that if they are sued over withholding records, he will “indemnify” them.

“The desires of the public and media to view firsthand evidence of criminal conduct, particularly video evidence, will remain unabated,” Montgomery wrote. “Equally so is our continuing duty to protect the rights of the accused, any victim, and the integrity of a criminal investigation and prosecution. Our criminal justice system deserves no less to maintain our community’s trust and confidence.” “The public at large should be worried,” said Tom Irvine, an attorney who has previously represented the Maricopa County Board of Supervisors. “If you can’t get information about what’s happening on criminal matters in your community, or know if police are acting improperly, then you have a big problem.” Glendale Police Chief Rick St. John said,  “I think Mr. Montgomery knows that at the end of the day, chiefs of police have the right to release information to the public that we’re not bound to protect under rules of the court. He has a different set of rules that he’s playing by.”

from https://thecrimereport.org

Prosecutor-Led Diversion Programs Lead to Reduced Incarceration, Re-Arrest

A study issued by the National Institute of Justice found that diversion programs benefit not only prosecutors, who save time, money and resources that could be spent on more serious cases, but also defendants, who avoid conviction and re-arrest.

Prosecutor-led diversion programs can lead to reduced conviction and incarceration, as well as reduced re-arrest rates, according to a study issued by the National Institute of Justice.

The study examined 16 prosecutor-led diversion programs in 11 jurisdictions across the country and conducted impact evaluations of five programs and cost evaluations of four programs.

Authors found that conviction rates among diversion and comparison cases were nine percent vs. 74 percent in Milwaukee’s Diversion program; 16 percent vs. 64 percent in Chittenden County’s Rapid Intervention Community Court (RICC), and three percent vs. 61 percent among felony defendants in Cook County’s Drug School.

Notably, all five programs also achieved at least some reduction in the use of jail sentences.

In recent years, a growing number of prosecutors have established pretrial diversion programs, either pre-filing—before charges are filed with the court—or post-filing—after the court process begins but before a disposition.

Participating defendants must complete assigned treatment, services, or other diversion requirements. If they do, the charges are typically dismissed, relieving the defendant of jail time and the latter consequences of a criminal record.

Diversion programs are beneficial not only to defendants, but to prosecutors as well, who save time, money and resources that could be allocated towards more serious and complex crimes, said the authors.

Now, prosecutor-led diversion programs are one of several increasingly popular “front-end” interventions targeting cases early in case processing, often before a case reaches the court, they noted.

“Our study confirmed a broader trend towards diverting cases to treatment or services at an extremely early juncture in criminal case processing,” the authors concluded.

Here are some of the other main findings in the study:

  • Case Outcomes: All five programs participating in impact evaluations (two in Cook County, two in Milwaukee, and one in Chittenden County, VT) reduced the likelihood of conviction — often by a sizable magnitude.  All five programs also reduced the likelihood of a jail sentence (significant in four and approaching significance in the fifth program).
  • Re-Arrest: Four of five programs reduced the likelihood of re-arrest at two years from program enrollment (with at least one statistically significant finding for three programs and at least one finding approaching significance in the fourth).  The fifth site did not change re-arrest outcomes.
  • Cost: All four programs whose investment costs were examined (two in Cook County and one each in Chittenden and San Francisco) produced sizable cost and resource savings.  Not surprisingly, savings were greatest in the two pre-filing programs examined, which do not entail any court processing for program completers.  All three programs whose output costs were examined (i.e., omitting the San Francisco site) also produced output savings, mainly stemming from less use of probation and jail sentences.

This study was implemented as a collaboration among the Center for Court Innovation, the RAND Corporation, the Association of Prosecuting Attorneys, and the Police Foundation. A full copy of the report can be found here.

Megan Hadley is a staff writer with The Crime Report. She welcomes readers’ comments.

from https://thecrimereport.org

Two NYC DAs May Stop Handling Most Pot Cases

District attorneys in New York City’s Manhattan and Brooklyn boroughs are weighing plans to stop prosecuting the vast majority of people arrested on marijuana charges, potentially curbing consequences of a law that is enforced most heavily against blacks and Hispanics.

District attorneys in New York City’s Manhattan and Brooklyn boroughs are weighing plans to stop prosecuting the vast majority of people arrested on marijuana charges, potentially curbing the consequences of a law that in New York City is enforced most heavily against black and Hispanic people, reports the New York Times. The Brooklyn district attorney’s office, which in 2014 decided to stop prosecuting many low-level marijuana cases, is considering expanding its policy so that more people currently subject to arrest on marijuana charges, including those who smoke outside without creating a public nuisance, would not be prosecuted. The Manhattan district attorney’s office, which last year decided to lighten penalties for some marijuana offenders, also would decline to prosecute the vast majority of low-level marijuana cases, with some exceptions for people with serious criminal histories.

Those changes would amount to a forceful disavowal by two high-profile prosecutors’ offices of criminal penalties for an offense that has been taken off the books in some states and that in New York City is enforced overwhelmingly against blacks and Hispanics. The discussions have been prompted in part by concerns among prosecutors about the continuing racial gap in marijuana arrests. The Brooklyn district attorney’s office has been experimenting for several weeks with declining to prosecute some cases of people arrested for smoking in public. Prosecutors in Manhattan have been studying jurisdictions that have legalized marijuana. Of the more than 5,000 people arrested on low-level marijuana charges in Manhattan last year, only 100 to 200 would have been prosecuted under the plan being considered. Police Commissioner James O’Neill hinted on Monday that he was already re-evaluating marijuana arrests. He said at a City Council hearing that more than a third of the people arrested on low-level marijuana charges last year had no previous criminal record.

from https://thecrimereport.org

Portrait of a Texas DA Who’s a Gang Member

In 2016, conservative Nueces County, Tx., elected Mark Gonzalez, a 38-year-old Democrat and self-described “Mexican biker lawyer covered in tattoos,” as district attorney. Gonzalez had never prosecuted a single case. He is a progressive prosecutor who still has filed death penalty cases.

In 2016, conservative Nueces County, Tx., elected Mark Gonzalez, a 38-year-old Democrat and self-described “Mexican biker lawyer covered in tattoos,” as district attorney. Gonzalez had never prosecuted a single case: For his entire 10-year career, he specialized in getting accused criminals off the hook, working mostly with low-income,  minority offenders, fighting low-level charges for marijuana and other substances. Gonzalez is part of a small wave of prosecutors, politically liberal and in some cases civil-rights advocates, who’ve been elected to roll back the excesses of the past 20 years’ worth of tough-on-crime laws, Politico reports. What might make him the unlikeliest DA in the U.S. is that he belongs to the motorcycle club Calaveras, which describes itself as a charity group but which the state of Texas officially considers a gang.

Gonzalez has staked out issues on which he wants to play reformer: a cite-and-release program for cases involving minuscule amounts of marijuana and a domestic violence initiative that includes assisting cosmetologists to spot signs of abuse in clients. He was one of 31 prosecutors nationwide to sign on to a letter sent last year to Attorney General Jeff Sessions, opposing his tough-on-crime order for federal prosecutors to “charge and pursue the most serious, readily provable offense.” On other big issues, including the death penalty, Gonzalez’s positions are, by his own admission, still evolving. He has pursued capital punishment in several cases, saying, “It’s not so much that I believe in it, but I want to give these decisions to the community.”

from https://thecrimereport.org

How Ex-Prisoners Help ACLU Reform Prosecution

The American Civil Liberties Union is launching voter education and mobilization campaigns in up to two dozen cities across 10 states as part of its campaign to reduce jail and prison populations. Other advocates are also organizing around prosecutor elections, and social justice political action committees are spending big to elect reformers.

When William Roundtree got out of prison earlier this year, it took him just a few days to find a job that put his experience to work. He spent 13 years and 10 months in prison for receiving stolen property. After leaving prison, he ran into people at a light rail stop working for the American Civil Liberties Union of Texas. Soon, the tattooed 40-year-old was making $12 an hour knocking on doors and talking to voters at shopping centers and train stations about the upcoming primary election for Dallas County district attorney, reports KERA in Dallas.  Roundtree wasn’t pushing a candidate, but an idea: that prosecutors are incredibly powerful, and that voters could use the election to elect one committed to reducing incarceration rates and racial disparities in the criminal justice system.

Roundtree is the front line of a national push to fundamentally change criminal justice,  one local prosecutor at a time. Nationwide, the ACLU is launching voter education and mobilization campaigns in up to two dozen cities across 10 states as part of its campaign to reduce jail and prison populations. Other advocates are also organizing around prosecutorial elections, and social justice political action committees are spending big to elect reformers. “We know that prosecutors at the end of the day are the ones who decide whether an individual comes into the justice system, and what that trajectory looks like,” says Miriam Krinsky of Fair and Just Prosecution, which works with reform-minded elected prosecutors.

from https://thecrimereport.org

Why the Prosecutor’s Role in Officer-Involved Deaths Has Become Critical

When police kill unarmed civilians, the path towards accountability begins with prosecutors. Elected to serve their communities as the chief law enforcement official, they have the means and mandate to confront the injustices that arise from systemic racism, writes the director of John Jay’s Institute for Innovation in Prosecution.

As California Attorney General Xavier Becerra begins overseeing the investigation of the killing of Stephon Clark, the 22-year-old African-American father of two shot by police in his grandmother’s backyard in Sacramento, Ca., nearly two weeks ago, an important question should be on the minds of every American.

If the investigation finds evidence of misconduct, how likely is there to be a charge, let alone a conviction?

The track record of officer-involved fatalities in the United States suggests the answer: Not likely.

Approximately 1,000 lives are lost at the hands of U.S. law enforcement every year, a number that has remained remarkably consistent. Every week, there are new reports of officer-involved fatalities from across the country. Earlier this week, the New York Police Department shot and killed a man in Brooklyn.

And still, over the course of a decade, from 2005 to 2015, only 54 officers nationwide were criminally charged, with nearly half of these cases resulting in acquittals or dismissals.

How can that be when, in most of these cases, there is ample evidence—hard data, and even live video—of the extent of force used?

This paradox was addressed recently by 35 experts participating in the launch of a new working group on officer-involved fatalities at the Institute for Innovation in Prosecution (IIP) at John Jay College of Criminal Justice. Comprised of prosecutors, directly impacted individuals, police, academics, and activists from around the nation, the group was formed to address the prosecutor’s role in dealing with these incidents—and in particular to devise and implement mechanisms of accountability.

Such an effort couldn’t be more crucial.

Prosecutors wield significant power in the criminal justice system. They have discretion over charging, pre-trial recommendations and plea conditions, and their decisions affect a case at nearly every stage of the criminal justice process. Yet, as the figures cited above demonstrate, even with this significant power, prosecutors have found it challenging to charge and convict police officers for excessive use of force.

The working group identified various obstacles to accountability. For example, most state statutes require a “standard of reasonableness” when evaluating the use of force by law enforcement. Another example: the public, the media and, often, jury pools are inclined to offer the benefit of the doubt to law enforcement while criminalizing those killed. Moreover, the process is stymied by systemically racist policies and practices, and a culture that impedes transparency.

The working group—including the prosecutors and police who participated—took these challenges as opportunities for reform, rather than as excuses.

There was widespread consensus that, as communities demand justice for the victims and families of police violence, prosecutors—as democratically elected officials directly accountable to the communities they serve—have the opportunity and the mandate to use their platform to demand accountability, both within the legal system and beyond it.

To do this, prosecutors must partner with those whose deep awareness of the absence of accountability can show the path forward. In other words, those who have lost loved ones to police violence.

As one directly impacted family member said during the working group discussions, “We become the experts unwillingly …We study this because we can’t sleep at night.”

That tragic “expertise” has motivated the victims of police violence to address the systemic inequities of the criminal justice system. We should join them.

Communities, particularly communities of color, that are disproportionately affected by excessive police use-of-force tend also to be those bearing the brunt of policies and practices that contribute to mass incarceration. The over-criminalization of communities of color cannot be separated from the disproportionately high rate of force that these communities experience at the hands of law enforcement.

Philando Castile was stopped in his car nearly 50 times before July 6, 2016. Eric Garner was reported to have been selling individual cigarettes when the police were called on July 17, 2014, though the cigarettes were never found.

According to Baltimore Police Department (BPD) data from January 2010 to May 2015 that the U.S. Department of Justice examined, BPD officers stopped 410 pedestrians at least 10 times. Some 95 percent of these pedestrians were black, although just 60 percent of the city’s population is black.

If officers did not routinely stop—and if prosecutors did not routinely charge—people of color for crimes that arguably pose no significant risk to public safety, perhaps we could expect fewer fateful encounters.

And if law enforcement did not routinely stop and prosecute people of color, perhaps they would stop feeding the myth of the “inherent danger” that people of color pose to public safety.

The belief in this inherent danger is tied to an implicit bias that is manifested in a variety of ways.

“Black male, maybe 20,” is how the Cleveland officer referred to Tamir Rice after he arrived at the playground and shot the 12-year-old within seconds of seeing him brandish what later proved to be a toy gun.

Stephon Clark

Stephon Clark/Facebook Photo via Wikipedia

The two Sacramento officers who shot Stephon Clark explained afterwards that they “fear[ed] for their safety.” Responding to reports of someone breaking into parked cars with a toolbar, they described Clark as advancing towards them with an “object” in his hand. The officers fired ten rounds each at him. The object was a cell phone.

The racial stereotyping that leads police to automatically assume the worst when they are involved in a tense confrontation with individuals of color surprised none of the members of the working group.

As a directly impacted family member observed during the working group discussion, “We have to say Black Lives Matter today because of this country’s history … The legacy of the Three-Fifths rule is [evident] in how we are [criminalized, and how no one is held accountable] when our lives are taken.”

One conclusion seems inescapable: The path towards accountability for officer-involved fatalities and excessive police use of force must move beyond body cameras and de-escalation training to confront the injustices that arise from systematic racism, both past and present.

As the chief local law enforcement and democratically elected official, a prosecutor has both the means and the mandate to do just that.

There already are instructive examples around the nation:

  • In Washington State and California, prosecutors are using their platforms to support calls for reform of the “standard of reasonableness” statutes.
  • Campaign Zero, whose website describes it as a “research collaborative collecting comprehensive data on police killings nationwide to quantify the impact of police violence in communities,” harnesses the power of data science to develop new policies and practices in partnership with police departments.
  • Leaders of a Beautiful Struggle, in Baltimore, offers useful suggestions for exploring alternative paths to accountability by using independent community-centered tools.

And lessons are being learned even in those cases where justice has yet to be found.

John Choi

John Choi

The jury in the Philando Castile case did not convict the officer who was charged with killing him. But the investigation and prosecution, led by County Attorney John Choi of Minnesota’s Ramsey County, provided vital lessons for the field.

Choi, who participated in the working group discussion, was asked by the mother of a victim of police violence about his continuing relationship with Castile’s family. He responded with an anecdote.

After the trial, Castile’s mother presented Choi with her son’s “Certificate of Class Completion” for a driving-diversion program established to help those whose licenses had been suspended due to unpaid fines and fees drive legally again. The program was launched when Choi had been Saint Paul’s City Attorney.

Meg Reiss

Meg Reiss

Showing the group a picture of the driving certificate, Choi said he lamented the fact that, while he had been able to help Castile in one aspect of the justice system, he was ultimately unable to achieve justice for him, his family, and his community in his death.

It’s the kind of humility and compassion that can help prosecutors build–and fight for–means of accountability that recognize the humanity and dignity of victims, families, and communities directly affected by police violence.

Prosecutors have the platform. And they are starting to use it.

Meg Reiss is executive director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice. She welcomes comments from readers.

from https://thecrimereport.org

‘Smarter Justice,’ Bail Reforms Make Headway Across U.S., Advocates Say

Progressive prosecutors and scientific pretrial release systems are reducing jail populations, say Jeremy Travis of the Laura and John Arnold Foundation and Maryland Attorney General Brian Frosh. New policies by newly elected Philadelphia DA Larry Krasner, including decriminalizing marijuana possession, were cited as examples.

Policies of prosecutors elected on progressive platforms around the U.S. show promise to reduce the nation’s incarceration totals, two experts told a gathering of state attorneys general.

Jeremy Travis of the Laura and John Arnold Foundation called “remarkable” and “stunning” a set of new policies announced by newly installed Philadelphia District Attorney Larry Krasner.

Krasner told his staff last month to offer shorter prison sentences in plea deals, decline to file marijuana possession and many prostitution charges, and explain case-by-case why taxpayers should pay thousands of dollars per year to incarcerate people.

Travis suggested that Krasner’s practices reflected some of the findings of a Misdemeanor Justice Project at John Jay College of Criminal Justice, which he formerly headed. The project “seeks to understand the criminal justice response to lower-level offenses, from arrest to disposition.”

During a discussion of bail reform, Travis questioned why suspects charged with misdemeanors “should be put in jail [pretrial] if the typical sentence is non-custodial.”

Another panelist at the meeting, Maryland Attorney General Brian Frosh, described the new prosecution trend in some cities as “smarter justice.”

Frosh noted that since 2013, police in his state have been empowered to issue citations instead of arresting people for many lower-level offenses, a change he said has “reduced the workload for judges, police and prosecutors.”

Travis and Frosh spoke on a panel Friday in Washington, D.C., at a conference organized by D.C. Attorney General Karl Racine for the National Association of Attorneys General on “Reducing Violence: Innovations That Work.”

Their main subject was efforts around the nation to eliminate or reduce the use of cash bail and base pre-trial release decisions on a scientific assessment of the risk that defendants will commit more crimes or fail to make future court appearances if they are released.

Maryland’s Court of Appeals last year overhauled the state’s bail system, requiring judges to consider whether defendants are able to make a bail payment when they set conditions for release.

Under the change, about one-fifth of defendants are being held because they can’t or don’t pay bail, down from 40 percent in the months before the reforms were enacted, chief state district judge Judge John Morrissey said in January.

Attorney General Frosh said on Friday that the policy shift has resulted in a six percent decline in the state’s jail population. “Overall, more people are being released,” he said.

Frosh was a proponent of bail reform when he served as a state senator. He persuaded his fellow senators to approve a reform plan but it “crashed and burned” in the other legislative body, the House of Delegates, amid opposition from the bail bond industry.

After he was elected Attorney General, Frosh took another tack–asking the state judiciary to impose the same kinds of changes he had advocated as a legislator.

Preliminary results show that the changes have worked so far, with defendants returning to court and committing new offenses after release at about the same rate as they did under the previous system, Frosh said.

Attempts by bail bondsman in the legislature to reverse the judicially-imposed policies have failed so far.

Travis said New Jersey has had a similar experience under a statewide change that went into effect last year, in which judges use an algorithm devised by his foundation to help make pretrial release decisions.

The initial results are “promising,” he said. The number of people charged with minor crimes who were locked up until trial because they couldn’t post bail fell by 20 percent in the system’s first year, found a report issued last month.

Travis acknowledged criticism that the new system perpetuates racial disparities in pretrial releases. Some say that more minorities continue to be denied release because risk assessment tools consider defendants’ prior criminal records, where minorities are disproportionately represented.

“It’s a tough one,” he said of the issue, which is still being studied.

Overall, Travis contended, it is good that more attention is being paid to the “profound” power of judges to decide on the pretrial release issue, which each year affects the family and employment situations of millions.

Seema Gajwani of the D.C. Attorney General’s office, who advocated for bail reform previously at the Public Welfare Foundation, told the conference that 11 million people in the U.S. cycle in and out of jails each year and that even having to serve a few days in jail after arrest can be “incredibly destabilizing” for many defendants.

“The number one reason that people stay in jail is that they are poor,” she said.

Although most of the discussion focused on low-level offenders, Frosh contended that the cash bail system doesn’t make much sense for alleged serious offenders, either.

He noted that the process essentially allows judges to set a money amount that defendants can pay to win release and “continue to wreak havoc.” The current bail system used in most of the U.S. “doesn’t make sense at any level,” Frosh said.

Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of The Crime Report. Readers’ comments are welcome.

from https://thecrimereport.org

What’s Inside the Prosecutorial ‘Black Box’?

Prosecutors are arguably the least understood players in the criminal justice system, and any reform effort must take them into account. But what do they think about their jobs? Here’s what one researcher found.

“If you are going to reduce the prison population, prosecutors are going to be the ones who have to lead the way.”

Since Fordham Law Professor John Pfaff wrote those words, in a paper published in 2011, analysts have been focusing on his argument that the nation’s historic and unprecedented prison growth since 1994 was not primarily driven, as many believed, by legislation—but rather by increased filing of felony charges by prosecutors.

He concluded that, in order to be successful, justice reform efforts would have to focus on prosecutors.

But until recently, the public had little understanding of what Pfaff also called the “the least transparent part of the criminal justice system,” particularly the enormous power wielded by prosecutors to determine who is charged, who may plead out, and who goes to prison.

Nor did many recognize the considerable influence district attorneys exerted in state public policy debates.

In an effort to pierce what Pfaff has termed the “prosecutorial black box,” the Charles Hamilton Houston Institute at Harvard Law School conducted a series of interviews with former and current prosecutors.

My colleagues and I were particularly interested in hearing about the experiences of individuals who had tried to enact reforms from the inside. To encourage optimal honesty, we assured confidentiality to everyone we spoke with.

The result was a series of revealing interviews that shed light on why many prosecutors become disillusioned with their jobs, and on the discomfort felt by African-American prosecutors, in particular, about being put in a position of, as one said, “sending other black men to prison.”

Public awareness of the prosecutors’ role is rapidly changing in districts across the country—red, blue and purple—as education campaigns waged by justice reform advocates are galvanizing voters to elect openly reform-minded district attorneys.

In Houston, Mississippi, Denver, San Francisco, Chicago, Brooklyn, and most recently, in Philadelphia, these leaders are promising to make the system fairer, more equitable, and more transparent. Many have pledged to reduce the prison population, change bail practices, divert non-violent offenders, end marijuana prosecutions, and reduce racial disparities in the system.

But there’s still a long way to go.

recent survey conducted by the American Civil Liberties Union in Massachusetts found that almost 40 percent of respondents did not even know that district attorneys were elected. As a result, most DAs routinely cruised to re-election, often without an opponent.

With a growing cohort of reformers now ensconced in office, advocates are closely monitoring their actions. In particular, they are questioning whether reform can be initiated and sustained from within the very offices that have been most responsible for “mass incarceration.”

And, if reforms are possible, where are the most promising levers?

Our survey explored these and other questions. Below is a short summary of what we found.

The Career Disconnect

When discussing with prosecutors what had initially attracted them to the job, most spoke of wanting to make a difference in the community, of wanting to be “players,” of finding solutions to social problems, “solving puzzles,” helping victims of crime, and to gain trial skills.

Yet, once in office, they all told us, they were evaluated almost exclusively on a very narrow set of metrics—their trial skills, ability to quickly go to trial and to win convictions:

“You were measured by the speed with which you are moving cases and you better get a conviction,” commented one interviewee. “You charged out everything that you could possibly charge out. A good plea meant a lot of time.”

Another mentioned that a memo would be sent around the office every time a prosecutor won a case, with “a lot of high fives based on how many years someone is sent away.”

Someone else explained that, when a defendant received a 15-year sentence or higher, the prosecutor’s photograph would be hung on a wall, next to a photograph of the defendant and of the referring FBI agent.

Race Matters

We noted a distinction, which needs to be further explored, between how white and black prosecutors initially approached their jobs. Many of the black prosecutors with whom we spoke expressed ambivalence about entering a field which required them to put so many other African Americans in prison.

One told us, “My struggle was being a black man in a position where I would be sending other black men to prison.”

Said another: “During the period I was there, there was no concern about mass incarceration, over-criminalization or reducing prison population. Those issues were never raised.”

While several white prosecutors told us they eventually became troubled by the racial disparities in prosecutions, it was not an initial concern, whereas the black prosecutors raised it immediately.

The Tipping Point

One surprising insight that emerged from several interviews was the deep emotional toll that prosecutorial work exacted over time. Several interviewees mentioned feeling empty, sad, and isolated, particularly because the office culture did not encourage them to be “soft.”

For a few, a particular case became a tipping point:

One moment—a black man had gone to trial for selling crack. It was the same story over and over…I decided to drive by, and sure enough, there was someone else selling crack at the same house where the defendant, now serving a mandatory minimum prison sentence, had been arrested….Nothing had changed.

 Winning a trial was supposed to be this moment of joy and accomplishment. You stand up and hug and laugh—but I felt crushed. This is one big swamp of tragedy. 

One case “overwhelmed me” and sent me over the edge. One mother had a son who was killed, another who killed. She lost both sons. They were from the same communities. Our approach was not working. 

We asked interviewees how they would change or reform the job. Here are some of the recommendations we heard most frequently.

Improve Recruitment and Training

Several of the individuals we interviewed discussed the need to cast a wider net when recruiting for new positions in the field, and, in particular, to seek out individuals “who are not so black and white” in their thinking about the consequences of breaking the law.

A few also noted the vast cultural, racial, ethnic and demographic differences between many prosecutors and the communities where they work.

“You cannot exact retribution on a community without any knowledge or understanding of that community,” commented one.

They recommended that all incoming prosecutors undergo training that included visiting prisons, speaking with incarcerated individuals, and understanding the full impact of incarceration and criminal control on an individual life’s and on the life of his or her family.

Broaden the Metric

Almost every interviewee noted that the metrics for measuring the performance of prosecutors were far too narrow.

Trial skills were valued extremely highly, along with an ability to move to trial quickly (“we don’t want to be the ones to slow the process down”), and, of course, to secure convictions.

But several mentioned that any positive contribution they chose to make, for instance, by working in communities, went largely unnoticed. While they weren’t actively discouraged from taking part in community events, they weren’t rewarded for doing so either.

“Nobody sent an e-mail around the office when I helped someone go to college instead of prison,” said one.

Collect More and Better Data

The lack of data collected by most District Attorney offices, according to several interviewees, hobbled reform efforts. It kept the public, and the staff, from measuring the office’s effectiveness on a variety of indicators beyond conviction rates.

This has led some to seize upon the work of organizations such as Measures for Justice, which gathers data on a host of criminal justice indicators at the county level in three broad areas—public safety, fair process and fiscal responsibility.

Using this data offers one way to hold District Attorney offices accountable on a far broader set of publically-available metrics for performance.

Ease the Emotional Toll

Many prosecutors spoke of feeling isolated, increasingly uncomfortable with a culture that focused exclusively on convictions and harsh prison sentences, yet fearful of appearing “soft.”

One interviewee suggested “term limits” to ensure that individuals did not develop “shells of hardness.”

Another observed that a broader set of metrics, which rewarded prosecutors for positive efforts within the community, might create more balance for line prosecutors, and ease their sense of isolation.

These interviews represent just a first step.

Johanna Wald

Johanna Wald

We need more data—both quantitative and qualitative—to more fully understand how changes to prosecutorial culture and incentives can accelerate the movement to create a more equitable and humane justice system.

Robert F. Kennedy once said that “every community gets the kind of law enforcement it insists on.” It’s therefore ultimately up to every community to insist upon a district attorney’s office that reflects its priorities and values.

Editor’s Note: The results of the survey were first presented at a June, 2017 conference at Harvard. Readers who wish to obtain a copy are invited to contact the author at jomawald@gmail.com.

Johanna Wald is the former director of strategic planning at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. She welcomes comments from readers.

from https://thecrimereport.org

No Police Shooting Charges from L.A. DA in Six Years

Critics say that Los Angeles District Attorney Jackie Lacey never charges police officers in fatal shootings, even in egregious cases. The law is weighted in favor of officers.

If there was ever a police shooting that would bring criminal charges against a law enforcement officer in Los Angeles, the killing of Brendon Glenn looked like it could be the one. The shooting was captured on video. Los Angeles Police Chief Charlie Beck issued an unprecedented public call for the officer to be prosecuted. The city paid out $4 million to Glenn’s family. Nearly three years later, Los Angeles County District Attorney Jackie Lacey decided not to bring charges against Officer Clifford Proctor, marking a rare public clash between two of the L.A. area’s top law enforcement officials, reports the Los Angeles Times. Her decision illustrates how even at a time of intense nationwide scrutiny of police officers, it remains extremely rare to prosecute them for on-duty shootings.

The law is heavily weighted in favor of officers if they reasonably perceived a threat to themselves or others when they opened fire, even if the belief was mistaken. Lacey’s supporters say she calculated she would not win at trial, sparing a police officer the ordeal of unnecessary criminal charges and herself the public humiliation of losing a high-profile case. Her critics say she appeared so intent on clearing the officer that her 83-page memo justifying the decision reads like it was written by a defense lawyer. Since taking office in 2012, Lacey has not brought charges against a police officer for an on-duty shooting. Some experts were concerned by Lacey’s reasoning, saying it might signal to officers that when there is a tussle in close quarters, they could justify opening fire by later claiming the suspect was trying to disarm them. Glenn is the third fatal high-profile police shooting in recent years involving a similar scenario.

from https://thecrimereport.org