Archive for the ‘Law’ Category
If prosecutors are not held accountable, then one can expect many more innocent people sentenced to prison for things they did not do. This editorial in the Boston Globe states it well:
TWENTY-NINE YEARS ago, a Berkshire County prosecutor named Daniel A. Ford made at least one awful decision: On the skimpiest evidence he charged a 19-year-old man with multiple counts of child rape. That may not be the worst of it; there are indications he may have played fast and loose with trial rules in order to get a conviction. Although Ford denies he did anything wrong, trial records suggest the defense attorney was unaware of significant exculpatory evidence held by the prosecution. In an atmosphere of homophobia and hysteria, the defendant, an openly gay teenager named Bernard F. Baran Jr., didn’t stand a chance. Convicted, he spent 21 years in prison for crimes he didn’t commit.
The death of Baran last month, at the age of 49, has brought renewed attention to the travesty of his trial and the tragedy of his imprisonment, and rekindled calls for disciplining Ford. Writing on the Globe op-ed page, lawyer Harvey Silverglate, who helped win Baran’s release in 2006, raised the possibility of removing Ford from his current job as a Superior Court judge, a position he has held since 1989.
That’s premature — but Silverglate and Baran’s other supporters are right to seek a full, public inquiry into both the prosecution’s conduct and its decision to try the case in the first place. The decision to release Baran in 2006 did not settle the question of whether Ford and the Berkshire County district attorney Gerard Downing acted appropriately, or whether the Commonwealth has adequate safeguards to prevent such a wrongful conviction again. Reviewing the long-ago prosecution now may seem pointless, since it’ll be difficult to establish facts and Baran will never be able to see the results anyway. But wrongful convictions represent a serious failure of the justice system. To prevent such miscarriages of justice in the future, it’s critical that the state revisit this painful episode. Whatever an investigation reveals about Ford, it’s crucial for the Commonwealth to set the precedent that prosecutors will answer for their actions in cases of wrongful conviction.
The 1985 prosecution took place against a backdrop of hysteria about a supposed wave of sex abuse at day care centers like the one in Pittsfield where Baran worked as a teachers’ aide. From the beginning, the case against Baran was full of warning signs. The mother of the first boy to raise accusations against Baran had previously complained about a gay worker caring for her child, using a slur and expressing the view that gays should not be allowed outside. Videotaped interviews show that other supposed victims were coached into making accusations against Baran after first denying he did anything to them. The first boy to accuse Baran later said it was his mother’s boyfriend that had abused him.
Part of the current dispute is the allegation that Ford and Downing didn’t share the full videotapes with Baran’s lawyer, misled the grand jury by implying there was nothing of note on the removed sections of the tapes, and didn’t alert the lawyer to the child’s claim against the mother’s boyfriend. Those would indeed be serious violations. The appeals court, when it upheld Baran’s release in 2009, didn’t rule on those questions, but pointedly suggested that the prosecution may have acted inappropriately. After the 2009 ruling, the Office of Bar Counsel reportedly investigated Ford but took no action and did not release any findings. Getting to the bottom of what happened might help determine whether the solution that Silverglate has proposed — an open-file system, in which prosecutors must give defense access to their files — would prevent such an outcome from happening again. . .
Continue reading. It’s good.
William Freivogel writes for St. Louis Public Radio:
Cincinnati’s police reform following a deadly police shooting and riots in 2001 has lessons for Ferguson and St. Louis. Here is what the reformers there say:
- Police reform will take a long time – many years, not many months.
- A Justice Department investigation, such as the one underway in Ferguson, is necessary but not sufficient to bring about lasting reform. The Justice Department goes away after five years.
- An enforceable court order will be necessary to make sure changes are implemented in the long term. A new policing strategy is also needed to bring the police and community together.
- The reforms should include transparency when police shoot civilians, an early warning system to identify troubled officers, new policies minimizing use of force, a civilian review board and video and audio on police cars and officers.
Here’s the story of the reformers in Cincinnati.
A stranger in her hometown
Iris Roley burst into tears when a federal monitor told her a decade ago that it would take more than 10 years to transform the relationship between the black community and the Cincinnati police.
Roley, a leader of Cincinnati’s Black United Front, wanted action right away. She felt so alienated that when people asked where she lived she refused to say Cincinnati. “I didn’t feel included,” she said.
Police had killed 15 young black men in the six years leading up to the 2001 shooting death of Timothy Thomas. . .
Interesting article by Lee Scheier in the Boston Globe, providing an example of how strongly prosecutors resist admitting error. From the article:
AFTER COMING under attack in an political ad for not doing enough to protect children, Martha Coakley, the Democratic candidate for governor, defended her record. In a large above-the-fold photograph published in the Globe Oct. 3, Coakley is seen standing next to Deborah Eappen, mother of Matthew Eappen, the baby whom Louise Woodward was charged with shaking to death in 1997.
Coakley, the prosecutor in that infamous trial, set up the photo op ostensibly to remind the public of her commitment to protecting children. If so, Coakley must think Massachusetts voters have short memories.
Although Woodward was found guilty of second degree murder by the jury, trial judge Hiller Zobel reduced the sentence to manslaughter and set Woodward free. Zobel’s skepticism of the justice of Woodward’s murder conviction was prescient: Dr. Patrick Barnes, Coakley’s chief expert witness in the case, later publicly renounced his own trial testimony as based on flawed scientific assumptions.
And another brief article on Coakley, this one by Radley Balko. The conclusion of that article:
It’s probably not surprising, then, that as DA in Middlesex County, Coakley opposed efforts to create an innocence commission in Massachusetts, calling the idea “backward-looking instead of forward-looking.” Of course, that’s sort of the point — to find people who have been wrongfully convicted. So far, there have been at least 23 exonerations in Massachusetts, including several in Coakley’s home county.
I had my own exchange with Coakley in the letters section of The Boston Globe a few years ago over the issue of prescription pain medication. Coakley had told the paper that “accidental addiction” to opiate pain medications such as OxyContin was a common problem among chronic pain patients, despite considerable medical evidence to the contrary. Such wrongheaded statements by law enforcement officials and the policies that go with them are a big reason why doctors have become increasingly reluctant to treat pain patients. Coakley conceded that she’s “no medical expert” but then went on to question the body of medical literature showing accidental addiction to be a myth. Coakley cited only her own experience as a DA to contradict the litany of peer-reviewed medical research.
As a member of the Senate, not only would Coakley be creating new federal criminal laws; given her record as a prosecutor, there’s a good chance she’d serve on committees with oversight over the Justice Department and the judiciary. She’d also be casting votes to confirm or deny federal judicial appointments. Advocates for criminal justice reform should be wary. Coakley may share Kennedy’s opposition to the death penalty, but her record as a prosecutor leaves plenty of doubt about her commitment to justice.
Interesting how something that violates human rights—something, in fact, that the US has signed a treaty that it will not do—is perfectly okay if you do it in another country.
Read this excellent editorial in the NY Times:
One of the proudest moments of President Obama’s presidency took place on his second day in office, when he signed an executive order that banned torture and cruel treatment in the interrogation of terror suspects.
But apparently some of his subordinates didn’t get the message. As Charlie Savage of The Times reported on Sunday, some military and intelligence lawyers in the administration are pressuring the White House to adopt a Bush-era position that there is no bar against the use of torture by the United States outside American borders. And, unfortunately, the White House is considering the proposal.
The issue has come up because the United States is required to appear in Geneva next month before the United Nations committee that monitors compliance with the global Convention Against Torture, adopted in 1984 and ratified by the United States 10 years later. State Department lawyers want the administration to abandon the position of the George W. Bush administration and state plainly that it will not engage in torture or cruel treatment of prisoners anywhere in the world, including at detention camps on foreign soil.
But military and intelligence officials don’t want the administration to make that public statement. They’re worried that such a declaration could result in the prosecution of the Bush-era officials who did practice torture.
That fear seems misplaced. There should be legal accountability from those who tarnished the country’s reputation by ordering and practicing torture, but it’s hard to see how agreeing to a global ban on torture now would increase the chances for such a prosecution. For one thing, Congress already passed a law in 2005 saying that no one in American custody shall be subjected to cruel, inhuman and degrading treatment “regardless of nationality or physical location.” Mr. Bush reserved the right to bypass the law, but the plain language of the statute is quite clear.
Last year, . . .
President Obama seems quite happy to ignore the legal requirements of the Conventions Against Torture with regard to investigating and prosecuting those Americans who tortured prisoners, suspects, and detainees.
The New Yorker videos are good. Mayer writes:
My interview of Edward Snowden, conducted remotely in front of an audience at the New Yorker Festival, was a chance to pose not just my own questions but also those that have been raised by his fiercest critics. One of his most interesting answers was his explanation for why he had decided to flee the United States. A number of detractors have suggested that if Snowden, who disclosed controversial top-secret N.S.A. programs to reporters, truly wanted to commit an act of civil disobedience for reasons of conscience, then he should have faced the legal consequences, making his case to the American public while standing trial at home.
When I asked why he didn’t take this route, Snowden said that because of the way national-security laws have been interpreted since September 11, 2001, he believed that the government had deprived him, and other whistle-blowers, of ever having the opportunity to make their cases in this time-honored tradition. Instead of being allowed to make his arguments in an open, public court, he said, his lawyers were told that the government would close the court for national-security reasons. (When asked to comment, a Justice Department spokesman would say only, “It remains our position that Mr. Snowden should return to the United States and face the charges filed against him. If he does, he will be accorded full due process and protections.”)
Snowden said that he would “love” to return to the United States and stand trial, if he could be assured that it would be open and fair. He said, “I have told the government again and again in negotiations that if they’re prepared to offer an open trial, a fair trial, in the same way that Daniel Ellsberg got, and I’m allowed to make my case to the jury, I would love to do so. But they’ve declined.”
Instead, Snowden said, “They want to use special procedures. They want a closed court. They want to use something called the Classified Information [Procedures] Act.”
Snowden pointed out that in other post-9/11 whistle-blower cases, such as those of the former N.S.A. employee Thomas Drake, the government invoked national-security concerns in order to keep the public from fully hearing the basis of his arguments. (I covered Drake’s case, and remember well the stifling secrecy surrounding the proceedings; in the end, the serious charges were dropped in return for Drake pleading guilty to a single misdemeanor.) National security became, in essence, a form of legal censorship, blocking communication between the accused and the American public. With no assurance that he could make his case to the American public at home, Snowden said that he instead has found himself, ironically, in Russia, a state not exactly known for its defense of civil liberties.
I asked him what he missed about the United States. “The question is, What don’t I miss?” Snowden replied. “It’s a great country.”
I just found a couple of excellent long reads about the Snowden affair and Laura Poitras’s role in it.
Here’s a Ripley’s Believe It or Not! stat from our new age of national security. How many Americans have security clearances? The answer: 5.1 million, a figure that reflects the explosive growth of the national security state in the post-9/11 era. Imagine the kind of system needed just to vet that many people for access to our secret world (to the tune of billions of dollars). We’re talking here about the total population of Norway and significantly more people than you can find in Costa Rica, Ireland, or New Zealand. And yet it’s only about 1.6% of the American population, while on ever more matters, the unvetted 98.4% of us are meant to be left in the dark.
For our own safety, of course. That goes without saying.
All of this offers a new definition of democracy in which we, the people, are to know only what the national security state cares to tell us. Under this system, ignorance is the necessary, legally enforced prerequisite for feeling protected. In this sense, it is telling that the only crime for which those inside the national security state can be held accountable in post-9/11 Washington is not potential perjury before Congress, or the destruction of evidence of a crime, or torture, or kidnapping, or assassination, or the deaths of prisoners in an extralegal prison system, but whistleblowing; that is, telling the American people something about what their government is actually doing. And that crime, and only that crime, has been prosecuted to the full extent of the law (and beyond) with a vigor unmatched in American history. To offer a single example, the only American to go to jail for the CIA’s Bush-era torture program was John Kiriakou, a CIA whistleblower who revealed the name of an agent involved in the program to a reporter.
In these years, as power drained from Congress, an increasingly imperial White House has launched various wars (redefined by its lawyers as anything but), as well as a global assassination campaign in which the White House has its own “kill list” and the president himself decides on global hits. Then, without regard for national sovereignty or the fact that someone is an American citizen (and upon the secret invocation of legal mumbo-jumbo), the drones are sent off to do the necessary killing.
And yet that doesn’t mean that we, the people, know nothing . . .
And Pasternack begins:
I get my face photographed and printed on a temporary ID card that I deposit into a slot and I get on an elevator and am led down a hallway. On a desk, I spot a signed letter with the Vice President’s seal. I’m brought into a windowless room, and there is the filmmaker Laura Poitras. On a coffee table is a MacBook Pro with a sticker that says “National Security Agency—Monitored Device.” Behind her, there’s a framed Ricky Gervais poster. We are at the offices of HBO, which began discussions to acquire the TV rights to her new film, “Citizenfour,” even before it was finished, not long before it premiered at the New York Film Festival to a standing ovation. We shake hands and I display my recorder. “Mind if I record?” I ask.
She laughs briefly and agrees. “That’s very respectful, given the context,” she says.
The context is quite serious. It was a 12-minute video made by Poitras that in June 2013 attached a name and a face to disclosures of a massive secret and legally dubious global surveillance system. A year earlier, Poitras became the first journalist to communicate with the NSA contractor Edward J. Snowden, then anonymously. Though she shared bylines on stories in the Guardian and the Times and Der Spiegel, much of the reporting was done by Glenn Greenwald and others, most recently at The Intercept, the upstart outlet where Poitras is also now also a founding editor. She has been in more of a hide-out mode, working on her much-anticipated documentary on multiple computers out of a bunker-like editing studio in Berlin. She moved there from New York in 2012, after years of getting stopped at the airport every time she tried to fly; starting in 2006, her air tickets were marked “SSSS” for Secondary Security Screening Selection, subjecting her to extra scrutiny at the borders.
She is no longer stopped, but wagers that she is still watched by her own government. She uses her cell phone sparingly and has become an expert in encrypted communications. “I really do feel that there are some really angry powerful people, mad at the reporting that we’re doing. I should expect they’re paying attention to my communications and who I spend time with.”
I asked her if she thought that by speaking with her, I too would end up on such a list. . .
Milwaukee officer fired for shooting to death an unarmed, homeless, mentally ill man. (No charges so far.)
SWAT team invades the wrong house. (This seems to happen a lot.)
San Francisco bicyclist roughed up and arrested for carrying his 10-month-old son in a baby carrier. (It’s unclear (a) why they beat him up, and (b) why the infant was sent to Child Protective Services instead of notifying the mother, who lived two blocks away.)