Archive for the ‘Law’ Category
We repeatedly discover just how bad prosecutors can be: deliberately sending an innocent man to death row, for example, or hiding evidence that would exonerate a defendant. And prosecutors enjoy some immunity from lawsuits. But Brandon Buskey describes some recourse:
WHEN it comes to poor people arrested for felonies in Scott County, Miss., Judge Marcus D. Gordon doesn’t bother with the Constitution. He refuses to appoint counsel until arrestees have been formally charged by an indictment, which means they must languish in jail without legal representation for as long as a year.
Judge Gordon has robbed countless individuals of their freedom, locking them away from their loved ones and livelihoods for months on end. (I am the lead lawyer in a class-action suit filed by the American Civil Liberties Union against Scott County and Judge Gordon.) In a recent interview, the judge, who sits on the Mississippi State Circuit Court, was unapologetic about his regime of indefinite detention: “The criminal system is a system of criminals. Sure, their rights are violated.” But, he added, “That’s the hardship of the criminal system.”
There are many words to describe the judge’s blunt disregard of the Sixth Amendment right to counsel. Callous. Appalling. Cruel. Here’s another possibility: criminal — liable to prosecution and, if found guilty, prison time.
If this notion seems radical, it shouldn’t. Federal law already provides a mechanism to prosecute judges and district attorneys as criminals when they willfully deprive people of their civil rights: Title 18, Section 242, of the federal code.
This isn’t some dusty, rarely used legal tool. The Department of Justice typically wields Section 242 against police and correctional officers accused of physical or sexual violence. But Section 242 applies with equal force to those who prosecute and sentence, the state officials whose deliberate skirting of civil rights can be most devastating.
At least, that’s how it is on paper. The federal government has not in recent memory pursued a judge under Section 242, and it has only rarely enforced this law against prosecutors.
It is absolutely essential to bring rogue law enforcement officers to justice, particularly in a post-Ferguson world in which violations of constitutional rights have come under intense scrutiny. However, the government’s focus on abuses by law enforcement officials leaves the burden of curbing abuse by judges and prosecutors to private individuals.
This is a responsibility few lawyers are willing to accept, in large part because the United States Supreme Court has made pursuing a civil case against a prosecutor or judge practically impossible.
Consider the case of John Thompson, who spent 14 years on death row for a murder he didn’t commit because the New Orleans Parish district attorney’s office intentionally concealed forensic evidence establishing his innocence. After his exoneration, Mr. Thompson sued the office under Section 1983 of the Civil Rights Act of 1871, landmark legislation intended to provide a federal forum to those deprived of their civil rights by state officials.
Though Mr. Thompson won a $14 million jury award, the Supreme Court set aside the verdict on appeal. Notwithstanding the fact that the New Orleans prosecutors had similarly withheld evidence in at least four other cases, or the fact that several prosecutors suppressed the evidence in Mr. Thompson’s own case, the court said that Mr. Thompson had failed to demonstrate a pattern of wrongdoing by the district attorney’s office, which it held was required by Section 1983. The court’s decision illustrates just one of a host of protections it has given to prosecutors and judges to shield them from liability. . .
One aspect of group loyalty is for members of a group to resist strongly (for reasons of loyalty) any investigation of the group and, when an investigation is launched, to attempt to conceal problems and wrong-doing from “outsiders.” We see this in how the Chicago Police Department lied about what happened and destroyed evidence in order to protect the murderer James Van Dyke, a member of the department. And now, we see it in US government agencies, as described in this NY Times story Eric Lichtblau:
Justice Department watchdogs ran into an unexpected roadblock last year when they began examining the role of federal drug agents in the fatal shootings of unarmed civilians during raids in Honduras.
The Drug Enforcement Administration balked at turning over emails from senior officials tied to the raids, according to the department’s inspector general. It took nearly a year of wrangling before the D.E.A. was willing to turn over all its records in a case that the inspector general said raised “serious questions” about agents’ use of deadly force.
The continuing Honduran inquiry is one of at least 20 investigations across the government that have been slowed, stymied or sometimes closed because of a long-simmering dispute between the Obama administration and its own watchdogs over the shrinking access of inspectors general to confidential records, according to records and interviews.
The impasse has hampered investigations into an array of programs and abuse reports — from allegations of sexual assaults in the Peace Corps to the F.B.I.’s terrorism powers, officials said. And it has threatened to roll back more than three decades of policy giving the watchdogs unfettered access to “all records” in their investigations.
“The bottom line is that we’re no longer independent,” Michael E. Horowitz, the Justice Department inspector general, said in an interview.
The restrictions reflect a broader effort by the Obama administration to prevent unauthorized disclosures of sensitive information — at the expense, some watchdogs insist, of government oversight.
Justice Department lawyers concluded in a legal opinion this summer that some protected records, like grand jury transcripts, wiretap intercepts and financial credit reports, could be kept off limits to government investigators. The administration insists there is no intention of curtailing investigations, but both Democrats and Republicans in Congress have expressed alarm and are promising to restore full access to the watchdogs.
The new restrictions grew out of a five-year-old dispute within the Justice Department. After a series of scathing reports by Glenn Fine, then the Justice Department inspector general, on F.B.I. abuses in counterterrorism programs, F.B.I. lawyers began asserting in 2010 that he could no longer have access to certain confidential records because they were legally protected.
That led to a series of high-level Justice Department reviews, a new procedure for reviewing records requests and, ultimately, a formal opinion in July from the department’s Office of Legal Counsel. That opinion, which applies to federal agencies across the government, concluded that the 1978 law giving an inspector general access to “all records” in investigations did not necessarily mean all records when it came to material like wiretap intercepts and grand jury reports. [That is, “all records” means “only some records.” This goes against the clear statement: “all records,” as most would clearly see, means “all records.” – LG]
The inspector-general system was created in 1978 in the wake of Watergate as an independent check on government abuse, and it has grown to include watchdogs at 72 federal agencies. Their investigations have produced thousands of often searing public reports on everything from secret terrorism programs and disaster responses to boondoggles like a lavish government conference in Las Vegas in 2010 that featured a clown and a mind reader.
Not surprisingly, tensions are common between the watchdogs and the officials they investigate. President Ronald Reagan, in fact, fired 15 inspectors general in 1981. But a number of scholars and investigators said the restrictions imposed by the Obama administration reflect a new level of acrimony.
“This is by far the most aggressive assault on the inspector general concept since the beginning,” said Paul Light, a New York University professor who has studied the system. “It’s the complete evisceration of the concept. You might as well fold them down. They’ve become defanged.”
While President Obama has boasted of running “the most transparent administration in history,” some watchdogs say the clampdown has scaled back scrutiny of government programs. [Indeed, the Obama administration consistently denies or delays FOIA requests, or provides materials so redacted as to be useless. The Obama administration is far from being transparent—it regularly refuses to cooperate with compensating victims of our undeclared warfare, such as those innocents tortured, or those killed in drone attacks. – LG]
“This runs against transparency,” said the Peace Corps inspector general, Kathy Buller.
At the Peace Corps, her office began running into problems two years ago in an investigation into the agency’s handling of allegations of sexual assaults against overseas volunteers. . .
The Royal Canadian Mounted Police, the federal police force in Canada, has claimed that they want to introduce body cameras, but they cannot find cameras that will pass their tests because they choose only cameras that don’t meet the criteria. For example, they require a camera with a 12-hour battery life, but for their tests they picked only cameras that could not meet that criterion. Could be they’re stalling…
Curtis Black reports in the Chicago Reporter:
It was just about a year ago that a city whistleblower came to journalist Jamie Kalven and attorney Craig Futterman out of concern that Laquan McDonald’s shooting a few weeks earlier “wasn’t being vigorously investigated,” as Kalven recalls. The source told them “that there was a video and that it was horrific,” he said.
Without that whistleblower—and without that video—it’s highly unlikely that Chicago Police officer Jason Van Dyke would be facing first-degree murder charges today.
“When it was first reported it was a typical police shooting story,” Kalven said, where police claim self-defense and announce an investigation, and “at that point the story disappears.” And, typically, a year or 18 months later, the Independent Police Review Authority confirms the self-defense claim, and “by then no one remembers the initial incident.”
“There are an average of 50 police shootings of civilians every year in Chicago, and no one is ever charged,” said Futterman. “Without the video, this would have been just one more of 50 such incidents, where the police blotter defines the narrative and nothing changes.”
Last December, Kalven and Futterman issued a statement revealing the existence of a dash-cam video and calling for its release. Kalven tracked down a witness to the shooting, who said he and other witnesses had been “shooed away” from the scene with no statements or contact information taken.
In February, Kalven obtained a copy of McDonald’s autopsy, which contradicted the official story that McDonald had died of a single gunshot to the chest. In fact, he’d been shot 16 times—as Van Dyke unloaded his service weapon, execution style—while McDonald lay on the ground.
The next month, the City Council approved a $5 million settlement with McDonald’s family, whose attorneys had obtained the video. They said it showed McDonald walking away from police at the time of the shooting, contradicting the police story that he was threatening or had “lunged at” cops. The settlement included a provision keeping the video confidential.
“The real issue here is, this terrible thing happened, how did our governmental institutions respond?” Kalven said. “And from everything we’ve learned, compulsively at every level, from the cops on the scene to the highest levels of government, they responded by circling the wagons and by fabricating a narrative that they knew was completely false.” To him this response is “part of a systemic problem” and preserves “the underlying conditions that allow abuse and shield abuse.”
In April, the Chicago Tribune revealed Van Dyke’s name and his history of civilian complaints—including several brutality complaints, one of which cost the city $500,000 in a civil lawsuit—none of which resulted in any disciplinary action. In May, Carol Marin reported that video from a security camera at a Burger King on the scene had apparently been deleted by police in the hours after the shooting.
“This case shows the operation of the code of silence in the Chicago Police Department,” said Futterman. “From the very start you have officers and detectives conspiring to cover up the story. The question is, why are they not being charged?”
Van Dyke’s history “also shows what happens when the police department consistently chooses not to look at patterns of abuse complaints when investigating misconduct charges,” he adds. This failure “is one of the reasons an officer like Van Dyke has an opportunity to execute a 17-year-old kid.”
Rather than acknowledging the systemic failures, Mayor Rahm Emanuel is now trying to frame the issue as the action of one bad officer, as the Tribune reports. “One individual needs to be held accountable,” he said Monday.
Kalven calls Emanuel’s “reframing” of the narrative “essentially false.” He points out that “everything we know now, the city knew from Day One. They had the officers on the scene. They knew there were witnesses. They had the autopsy, they had the video…. They maintained a false narrative about those events, and they did it for a year, when it could have been corrected almost immediately….They spent a year stonewalling any calls for transparency, any information about the case.” . . .
Apparently nothing whatsoever will be done to police who gave false testimony about what happened and the police who destroyed evidence. The problem goes well beyond the individual police officer who has been indicted on a murder charge: the entire department seems to have colluded in covering up the crime. We should see more charges: obstruction of justice, accessory after the fact, and so on.
In the Guardian, Brandon Smith presents the video and the story of how he filed suit to get the video. From the story:
. . . The arm of government that investigates police misconduct here in Chicago, the Independent Police Review Authority (IPRA), has found only one police shooting in the past five years to be “not justified”. This leaves all the others, nearly 400 shootings, to be considered “justified”. And it leaves the impression that police here sparkle with unicorn magic.
But communities of color know otherwise.
“It’s an all-out extermination campaign,” says William Calloway, my friend and the inspiration behind my initial FOIA request for the video. Before the lawsuit and before the request, Calloway told me that I should try to pry the video loose where a bunch of other news organizations (14, to be exact) had refused. As an activist, Calloway works with the families of victims of police violence.
“People need to know that Chicago has some of the most police shootings in America, and that more than 70% of them are perpetrated against people of color,” Calloway says, citing data uncovered by the Better Government Association and others. “People need to know that communities of color are policed differently, policed much more violently, than in predominantly white communities. And people need to know that police are not being held accountable. And all this needs to change.”
Mayor Rahm Emanuel keeps implying that this incident is a one-off situation. But that’s wrong. And Emanuel hasn’t mentioned that others acted improperly that night, too. At least five other officers didn’t approach Laquan as he took his last breaths. Police deleted the parts of the surveillance tape from across the street that showed the murder. Witnesses have said that they were not interviewed about what they saw but rather told to leave at penalty of arrest.
Minutes later, police lied to a spokesperson preparing to brief reporters, saying that Laquan “lunged” at officers. (The video shows he was walking away from all officers.) And last but not least, an investigation into the shooting, led by Cook County state’s attorney Anita Alvarez, should have taken weeks at most – not 13 months. Lest we forget, video showed what happened.
Everyone responsible for these situations deserves charges ranging from obstruction of justice to accessory to murder. Emanuel has yet to say anything except to condemn officer Van Dyke. He spent the vast majority of the press conference he held Tuesday singing the nonspecific praises of our city and our police officers. Even the answers to reporters’ pointed questions somehow pivoted to how great we’re doing as a city – at a press conference called to discuss police violence. . .
Chicago’s response to this incident shows a stubborn unwillingness to confront the problem, a determination to minimize incidents by ignoring how the entire system protects police who shoot black civilians, including by lying about what happened, destroying evidence, refusing to take any action unless forced, and in general by exerting the maximum effort to keep the system intact as it is, even if an occasional officer must be sacrificed by being a scapegoat, the role forced upon Van Dyke.
Rahm Emanuel personifies the unwillingness to confront the problem and recognize its true dimensions. His response to this incident exemplifies bad faith and a craven reluctance to accept the responsibilities of his position.
UPDATE: Black leaders in Chicago are (rightly) pushing for an investigation of the police department. (Link is to a story in the NY Times.) Rahm Emanuel should be leading the push rather than resisting it.
Not a surprise: Koch brothers want to advance their own corporate interests, not reform the criminal justice system
Dan Froomkin writes in The Intercept:
The New York Times on Wednesday reported the shocking news that the “rare coalition” on criminal justice reform that included liberal groups and the right-wing billionaire Koch brothers is falling apart.
But as The Intercept‘s Lee Fang wrote earlier this month, the ostensible alliance over liberalization of America’s criminal justice laws was based on a misunderstanding of the Koch brothers’ fundamental political goal.
That goal is, quite consistently, to advance their own corporate interests.
So, while the Kochs and the liberal groups used similar language in their critique of the criminal justice system, when it came down to actual legislation, the Kochs were focused on reducing criminal prosecutions of corporations, not people.
Members of Washington’s elite media crave stories about bipartisanship, so groups like the pro-Clinton Center for American Progress garnered positive media attention for finding common ground with the Kochs earlier this year.
Now, CAP president Neera Tanden is issuing statements that “the bill is not aimed at addressing the aspects of the criminal justice system that are the drivers of mass incarceration and inequality and should not be part of any genuine discussion of criminal justice reform.” To the contrary, she says: “The bill would make it much more difficult to enforce bedrock regulatory safeguards—such as environmental, health, and consumer safety protections—and leave communities of color disproportionately vulnerable to unscrupulous, fraudulent, and predatory business practices that exacerbate existing inequality in our communities.”
There are some conservatives truly devoted to criminal justice reform – and there’s even a truly united left-right coalition on some specific criminal justice issues, like prison rape.
But, as Fang wrote, even while the Kochs were talking criminal justice reform, their money was notably continuing to finance election-year efforts that promote tough-on-crime politics.
Of the 38 federal lobbyists employed by Koch, . . .
It’s on the same template as the way the Mafia reportedly takes over your restaurant, as a “partner” who steals everything not nailed down, takes out loans secured by the business, and leave it a broken, destroyed shell. Pam Martens and Russ Martens report in Wall Street on Parade in an article on how golden parachutes have gotten pathological:
On September 11, 2002, the Securities and Exchange Commission brought charges against the three top executives of Tyco International. The complaint began with this: “This is a looting case.”
The SEC charged that Tyco’s CEO, Dennis Kozlowski and Mark Schwartz, its CFO, “took hundreds of millions of dollars in secret, unauthorized and improper low interest or interest-free loans and compensation from Tyco.” The transactions were concealed from shareholders and, according to the SEC, “Kozlowski and Swartz later pocketed tens of millions of dollars by causing Tyco to forgive repayment of many of their improper loans” and “engaged in numerous highly profitable related party transactions with Tyco and awarded themselves lavish perquisites — without disclosing either the transactions or perquisites to Tyco shareholders.”
USA Today reported that the Manhattan apartment that Tyco had been providing to Kozlowski “includes a $6,000 shower curtain, coat hangers valued at $2,900, two sets of sheets for $5,960 and a $445 pincushion.”
The SEC also charged that the General Counsel of Tyco, Mark Belnick, a former partner of the corporate law firm Paul, Weiss, Rifkind, Wharton & Garrison, “defrauded Tyco shareholders of millions of dollars through egregious self-dealing transactions.” According to the SEC, “from 1998 into early 2002, Belnick received approximately $14,000,000 in interest-free loans from Tyco to buy and renovate a $4,000,000 apartment on Central Park West and to buy and renovate a $10,000,000 ski chalet in Park City, Utah.” The SEC noted that “by failing to disclose his self-dealing to investors, Belnick violated the antifraud provisions of the federal securities laws.”
Kozlowski and Schwartz were eventually tried by the Manhattan District Attorney’s office and sent to prison. (Both are out now.) Belnick was acquitted by a jury on fraud and larceny charges brought by the D.A. The jury believed that Belnick had internal company approvals for the loans. The SEC eventually settled its civil case against Belnick with a civil penalty in the amount of $100,000 and the prohibition that he not serve as an officer or director of a public company for a period of five years. He was allowed to retain his law license.
One of the most striking revelations in the Belnick case was the retention agreement Belnick had with Tyco. It guaranteed Belnick a payment of at least $10.6 million should he commit a felony and be fired before October 2003.
Another obscene Golden Parachute that came to light involved a Dow Jones Industrial Average blue chip company: General Electric. . .
In 1981, DC police framed Donald Gates for rape and murder. He spent 27 years in prison. On Wednesday, a federal jury ruled that the city will have to pay up. From the Washington Post:
Jurors found that two D.C. homicide detectives fabricated all or part of a confession purportedly made by the wrongly accused Donald E. Gates to a police informant. The detectives also withheld other evidence from Gates before he was convicted in the fatal attack on a 21-year-old Georgetown University student in Rock Creek Park, jurors found. […]
Jurors deliberated less than seven hours before finding that Taylor, the lead detective, had violated Gates’s right to a fair trial by feeding Gates’s name and other details to the informant, and that both detectives had conspired and withheld information.
Gates is now 64. He was exonerated in 2009 after DNA evidence proved his innocence. Federal prosecutors refused to comment on whether the detectives will be held criminally liable.
This is a disturbing example of how sovereign immunity can go horribly wrong. The two cops who framed a guy for murder are retired, faithfully spending their monthly pension. They still work in security, one for the Fed and one in entertainment. They purposefully put an innocent man in jail. As of now, they face no charges and are subject to no punishment.
Jurors will now decide how much Gates should receive in damages. No matter the sum, it can’t make up for the fact that he lost 27 years of his life. Still, he certainly deserves a significant amount of monetary compensation. But the two cops won’t have to pay a dime. Instead, the well-deserved money will come out of taxpayer’s pockets.
Taxpayers paid the cops salaries. All the planning, lying, and coercion necessary to frame Gates? All on the taxpayers tab. They paid for twenty-seven years of an innocent man’s incarceration. They will pay compensation for law enforcement’s criminal acts. And they will continue to pay the two cops’ pension every month.
Exoneration was critical, but not enough. Compensation was necessary, but not enough. There can only be true justice when the cops are held criminally and civilly liable for their crimes.