Archive for the ‘Law’ Category
David Dayen writes in The Intercept:
Companies that provide investment advice have been vigorously fighting a proposed Department of Labor rule that would formally require investment advisors for retirement plans to operate in the best interest of their clients — instead of ripping them off with products that earn bigger profits.
Investment advisors have claimed this would be disastrous for their businesses and would leave retail investors with no assistance in navigating the financial markets.
But behind the scenes, in earnings calls with their own shareholders, these same companies are downplaying the impact of the rule, reassuring that they could easily handle the changes.
This contradiction was revealed in a letter from Senator Elizabeth Warren and Congressman Elijah Cummings made public Thursday. The letter highlights four companies with investment advisory units, contrasting their public and private statements, and implicitly raising the question: Are they lying to the Department of Labor, or to their shareholders?
For example, in a letter to the Labor Department last July, Jackson National Life Insurance Company president James Sopha called the proposal “bad for investors and for America,” and said that “it will be very difficult, if not impossible for financial professionals and firms to comply with the requirements.”
But in a call with shareholders, the CEO of Jackson’s parent company, Prudential U.K., said that the company would “build whatever product is appropriate… and adapt faster and more effectively than competitors.”
The lawmakers note in their letter that public companies are required by law to accurately report material information to shareholders. The Securities and Exchange Commission routinely charges companies with delivering misleading information on earnings calls. Pharmacy chain CVS Caremark, for example, paid $20 million for doing so in 2014. Citigroup paid $75 million for the offense in 2010.
Here’s another example: Dennis Glass, CEO of Lincoln National, told the Labor Department in a comment letter that their rule was “so burdensome and unworkable that financial advisors and firms would not be able to use it.”
But he told shareholders that “Lincoln, because of our scale, broad set of product offerings and strong and diverse distribution franchises with a proven ability to pivot in response to market or regulated changes… will therefore be able to navigate through whatever comes down the road.” He added, “we don’t see this as a significant hurdle for continuing to grow our business.”
Glass’s company and other are pouring millions of lobbying dollars into opposing the rule. President Obama’s Council of Economic Advisersestimates that “conflicted” advice costs individual investors $17 billion a year in retirement savings.
Warren and Cummings also include contradictory comments from the leaders of Prudential Financial and Transamerica Corporation. . .
Lorrie Moore writes in the NY Review of Books:
Wisconsin is probably the most beautiful of the midwestern farm states. Its often dramatic terrain, replete with unglaciated driftless areas, borders not just the Mississippi River but two great inland seas whose opposite shores are so far away they cannot be glimpsed standing at water’s edge. The world across the waves looks distant to nonexistent, and the oceanic lakes stretch and disappear into haze and sky, though one can take a ferry out of a town called Manitowoc and in four hours get to Michigan. Amid this somewhat lonely serenity, there are the mythic shipwrecks, blizzards, tornadoes, vagaries of agricultural life, industrial boom and bust, and a burgeoning prison economy; all have contributed to a local temperament of cheerful stoicism.
Nonetheless, a feeling of overlookedness and isolation can be said to persist in America’s dairyland, and the idea that no one is watching can create a sense of invisibility that leads to the secrets and labors that the unseen are prone to: deviance and corruption as well as utopian projects, untested idealism, daydreaming, provincial grandiosity, meekness, flight, far-fetched yard decor, and sexting. Al Capone famously hid out in Wisconsin, even as Robert La Follette’s Progressive Party was getting underway. Arguably, Wisconsin can boast the three greatest American creative geniuses of the twentieth century: Frank Lloyd Wright, Orson Welles, and Georgia O’Keeffe, though all three quickly left, first for Chicago, then for warmer climes. (The state tourism board’s campaign “Escape to Wisconsin” has often been tampered with by bumper sticker vandals who eliminate the preposition.)
More recently, Wisconsin is starting to become known less for its ever-struggling left-wing politics or artistic figures—Thornton Wilder, Laura Ingalls Wilder—than for its ever-wilder murderers. The famous late-nineteenth-century “Wisconsin Death Trip,” by which madness and mayhem established the legend that the place was a frigid frontier where inexplicably gruesome things occurred—perhaps due to mind-wrecking weather—has in recent decades seemingly spawned a cast of killers that includes Ed Gein (the inspiration for Psycho), the serial murderer and cannibal Jeffrey Dahmer, and the two Waukesha girls who in 2014 stabbed a friend of theirs to honor their idol, the Internet animation Slender Man.
The new documentary Making a Murderer, directed and written by Laura Ricciardi and Moira Demos, former film students from New York, is about the case of a Wisconsin man who served eighteen years in prison for sexual assault, after which he was exonerated with DNA evidence. He then became a poster boy for the Innocence Project, had his picture taken with the governor, had a justice commission begun in his name—only to be booked again, this time for murder.
Ricciardi and Demos’s rendition of his story will not help rehabilitate Wisconsin’s reputation for the weird. But it will make heroes of two impressive defense attorneys as well as the filmmakers themselves. A long-form documentary in ten parts, aired on Netflix, the ambitious series looks at social class, community consensus and conformity, the limits of trials by jury, and the agonizing stupidities of a legal system descending on more or less undefended individuals (the poor). The film is immersive and vérité—that is, it appears to unspool somewhat in real and spontaneous time, taking the viewer with the camera in unplanned fashion, discovering things as the filmmakers discover them (an illusion, of course, that editing did not muck up). It is riveting and dogged work.
The film centers on the Avery family of Manitowoc County, home to the aforementioned ferry to Michigan. Even though the lake current has eroded some of the beach, causing the sand to migrate clockwise to the Michigan dunes, and the eastern Wisconsin lakeshore has begun to fill forlornly with weeds, it is still a picturesque section of the state. The local denizens, whether lawyers or farmers, speak with the flata’s, throatily hooted o’s, and incorrect past participles (“had went”) of the region. There is a bit of Norway and Canada in the accent, which is especially strong in Wisconsin’s rural areas and only sometimes changes with education. . .
Later in the column:
is a crazy story. And the film’s double-edged title pays tribute to its ambiguity. Either Steven Avery was framed in a vendetta by Manitowoc County or the years of angry prison time turned him into the killer he had not been before. But the title aside, the documentary is pretty unambiguous in its siding with Avery and his appealing defense team, Jerry Buting and Dean Strang, who are hired with his settlement money as well as money his parents, Dolores and Allan, put up from the family business.
One cannot watch this film without thinking of the adage that law is to justice what medicine is to immortality. The path of each is a little crooked and always winds up wide of the mark. Moreover, nothing is as vain and self-regarding as the law. In Wisconsin prisoners will not get their parole unless they sign formal admissions of guilt and regret. (This kept Steven Avery from his own release when he was younger; he clung to his innocence.) These exacting corrections procedures are almost religious and certainly Orwellian in their desire to purge the last contrarian part from the human spirit. Any contempt for the law—even by a lawyer in court—will not go unpunished. And if one has the further temerity to use the law against itself—filing a lawsuit against law enforcement, for instance—one should be fearful. Especially in Manitowoc. Or so say many of the locals in front of Demos’s camera.
As portrayed in Making a Murderer, however, the law is not so vain that it doesn’t point out the low IQs of the defendants (an IQ test, it could be asserted, largely measures the desire for a high IQ) while omitting the fact that in Wisconsin most lawyers are practicing law without ever having taken a bar exam. (If someone has attended law school in the state, the bar exam is not required to practice there—a peculiarity of Wisconsin.)
Just a selection from these links Radley Balko posted in the Washington Post:
- The Guardian reviewed the leaked contracts between police unions and dozens of U.S. cities that promise to keep personnel files and disciplinary actions hidden from public view.
- Botched police raid No. 1: Florida cops dispatched to the wrong house, still open fire on innocent man. Somehow, he wasn’t hit.
- Botched police raid No. 2: Drug-raiding Chicago police break down door to apartment occupied by single mom, two kids ages 11 and 14. They were acting on a tip from an informant, who said they’d find a drug dealer and heroin. They didn’t find either.
- Ferguson, Mo., city council thumbs its nose at the Justice Department, sends back consent decree with unilateral revisions.
- Connecticut court finds that State’s Attorney Gail Hardy hid a sentencing deal with a witness, overturns kidnapping conviction.
Rob Kuznia reports in the Washington Post:
Jose Gonzalez remembers feeling disoriented as he stepped out of Chuckawalla Valley State Prison and into the vastness of the Colorado Desert. A corrections van was waiting to shuttle him to freedom. The driver rolled down the passenger window and told Gonzalez to get in. The door handle felt foreign in his fingers, and he struggled to open it.
“I’d never been able to open my own door in 20 years,” he said.
Gonzalez had just served a long stint on a life sentence for his role in a grisly 1996 murder. Until his release last April, Gonzalez had no doubt he would die in prison: “If you had a life sentence . . . you were going to do life. No one was getting out.”
But Gonzalez, 36, returned to society and is now answering phones in downtown Los Angeles as a paid intern for the Anti-Recidivism Coalition and Human Rights Watch, two nonprofit groups that sponsored the law that cleared the way for his release.
Gonzalez is among thousands of felons benefiting from a grand experiment, an act of mass forgiveness unprecedented in U.S. history. In California, once a national innovator in draconian policies to get tough on crime, voters and lawmakers are now innovating in the opposite direction, adopting laws that have released tens of thousands of inmates and are preventing even more from going to prison in the first place.
The most famous is a landmark ballot measure called Proposition 47, which in 2014 made California the first state in the nation to make possession of any drug — including cocaine and heroin — a misdemeanor. More astonishing is the state’s decision to show leniency toward violent offenders, including murderers like Gonzalez.
or example, the state has ordered parole hearings for longtime inmates convicted of committing violent crimes before they turned 23, requiring authorities to consider anew whether immaturity at the time of the inmates’ offense argues for their release.
Meanwhile, Gov. Jerry Brown (D) has approved parole for roughly 2,300 lifers convicted of murder and about 450 lifers sentenced for lesser offenses — a revolution in a state that released only two lifers during former governor Gray Davis’s entire four-year term.
And more reforms could be in store. Last month, Brown unveiled a ballot measure that, if approved by voters in November, would grant early release to nonviolent felons who complete rehab programs and demonstrate good behavior.
Progressives across the nation have applauded California’s U-turn.
“There is a gathering sense that the public is considerably less punitive than people had thought,” said Joe Margulies, a professor of law and government at Cornell University. . .
A good example of a mayor (De Blasio in this case) abrogating his responsibilities, presumably because he thinks it is too much trouble to respond to citizen complaints and to carry out the responsibilities of his office. Sarah Ryley reports in ProPublica:
Mayor Bill de Blasio commented for the first time Monday on the Daily News/ProPublica’s investigation into the NYPD’s use of the nuisance abatement law toboot hundreds of people from homes — saying while he supports the underlying “concept” of the law to keep neighborhoods safe, he thinks “there should always be due process” and promised to “look carefully at protocols.”
The investigation found judges approved 75 percent of the NYPD’s secret requests for orders that locked people out of their homes before they’ve had a chance to defend themselves — the very definition of removing one’s right to due process, lawyers say.
De Blasio spoke on the issue after being asked about it at an unrelated press conference. De Blasio, who was elected on a promise of police reform, had earlier deferred comment to the NYPD.
But mayoral spokeswoman Monica Klein clarified: When the mayor said, “there should always be due process,” the mayor doesn’t mean he’s opposed to the secret lockout orders.
As for the promise to “look carefully at protocols to make sure that there’s appropriate due process and decisions are made carefully,” Klein said that’s going to be handled by the city Law Department — the agency already tasked with reviewing every filing and settlement agreement in the NYPD’s nuisance abatement actions as the polices’ co-counsel.
“So it’s basically self-policing,” said Public Advocate Letitia James. “I believe that there should be sunlight to the protocols … to ensure that the rights of tenants are not being abused. And the entity that basically prosecutes these cases cannot be the same entity,” she said. “It’s a conflict.”
James said she has started the process of opening her own inquiry by sending a letter to the administration requesting a meeting, and urging the NYPD to “cease and desist” secret lockout requests unless the occupants pose an immediate danger.
The NYPD has continued to decline requests for comment.
Several sources said the City Council is also in the process of scheduling an oversight hearing on the matter.
Meanwhile, Congressman Hakeem Jeffries, D-Brooklyn/Queens, said he plans to forward The News/ProPublica’s findings to the Dept. of Justice as part of a request for a federal investigation into whether the NYPD has a “pattern and practice” of violating the civil rights of minorities.
“The fact that people have been placed at risk of losing their home, thrown out of their apartment, often without a criminal conviction, is shameful,” said Jeffries. “That should shock the conscience of every New Yorker, and merits oversight and review at every level of government.”
Several attorneys told The News the issue is ripe for a class action suit — which is what ultimately pushed the city to reform stop and frisk.
Darpana Sheth, a lawyer with the Institute for Justice, said her organization “is looking more closely into it.”
In November, the Institute reached a partial settlement in a class action lawsuit against the city of Philadelphia challenging the constitutionality of some of the exact same practices in its civil forfeiture program. . .
Very interesting column by Radley Balko in the Washington Post on how sleep deprivation facilitates false confessions:
Here’s the write-up, from New Scientist:
“To the average person it’s inconceivable how a false confession can happen,” says Saul Kassin of the John Jay College of Criminal Justice in New York, who has been an expert witness in dozens of wrongful conviction cases. He says the suspect usually sees it as a short-term measure, thinking that when all the evidence is in, their innocence will become obvious. “They believe that in the end they won’t have to pay for the confession.”
Such a gamble is hard for juries to understand, he says, but the latest study might help. In this, 88 people did various computer tasks as part of a fake experiment, then either slept for 8 hours or had to stay awake all night. The next morning they were accused of losing all the study data by pressing the “Escape” key, something they had been repeatedly warned against.
“It’s not as awful as confessing to murder but some of these people feel really bad – they think the experiment is ruined,” saysElizabeth Loftus of the University of California, Irvine, who took part in the work.
When asked to sign a statement admitting their guilt, half of those who were sleep deprived complied, compared with only 18 per cent of those who got a night’s rest.
There are some clear limitations to any study of false confessions — there’s just no way to really replicate the conditions under which they’re typically given. But given those limitations, this study is pretty compelling. It’s also intuitive. Sleep deprivation is a common method of torture. And as with other methods of torture, people will say what they think they need to say to get relief. It’s not hard to see why innocent people might be more likely to confess when sleep-deprived, especially if they believe there’s other evidence out there that will later clear them. A guilty person has more incentive to endure the discomfort.
We should also be suspicious of information obtained through sleep deprivation because of what it does to the body. From Psychology Today:
One of the first symptoms of sleep deprivation in humans is a disordering of thought and bursts of irrationality. Beyond 24 hours of deprivation people suffer huge drops in cognitivefunctions like accurate memory, coherent speech, and social competence. Eventually the victims suffer hallucinations and a total break with reality.
Whatever sounds come out of people’s mouths at that point, whatever words they may seem to be saying, have to count as the least reliable kind of information one could possibly conceive. A mind tortured to that extremity will not provide anything that can be trusted as relevant to the real world. Even if the person really knew some vital bit of information (e.g., the location of a ticking time bomb), prolonged sleep deprivation will make it less likely the person could accurately and meaningfully communicate that information. Beyond a certain point the sleep deprived individual can no longer maintain enough cognitive coherence to say anything useful to anyone.
A recent study from the University of California-Irvine found that sleep deprivation can also make people susceptible to false memories, meaning that if coupled with suggestion, it not only can lead to a false confession, but also could make for a pretty convincing one.
The New Scientist article notes several cases in which a sleep-deprived suspect was later exonerated, including Damon Thibodeaux, who was wrongly imprisoned in Louisiana for 15 years. There’s also Daniel Anderson of Chicago, who spent 25 years in prison for a sleep-deprived confession. Frank Sterling served more than 18 years in a New York prison after falsely confessing to raping and killing a 74-year-old woman in 1988. His confession came after 12 straight hours of interrogation. He tried to explain what he was going through to New York magazine in 2010: “They just wore me down . . . I was just so tired. Remember, I hadn’t had any sleep since about 2:30 Tuesday night . . .“It’s like, ‘Come on, guys, I’m tired—what do you want me to do, just confess to it?’ It’s like, yeah—I wanted to get it over with, get home, and get some sleep . . . Eighteen years and nine months later, I finally get to go home.”
Sleep deprivation can even cause people to falsely admit to raping and killing their own children. ..
The example provided of the man who falsely admitted to raping and killing his own daughter is stunning. But now that prosecutors are aware of the dangers of a false confession coming from sleep deprivation, perhaps they will review the circumstances of a confession and reject confessions likely to be false—by, for example, considering whether the person confessing was sleep-deprived and revisiting the confession after she or he is rested. But it does seem that it’s not uncommon for that a prosecutor just wants a confession and a conviction and is willing to go to any length to get that without much concern about whether the person confessing is actually guilty.
Police shootings have been all over the news over the past few weeks — both new incidents and new developments in the litigation of old ones. Here’s a quick roundup:
- In a puzzling and incredibly sad incident last month, Mesa, Ariz., police shot and killed 26-year-old Daniel Shaver in the hallway of a La Quinta Inn hotel. The police claim a guest saw someone in Shaver’s room point a gun out the window. According to posts Shaver’s partner Laney Sweet put up at Facebook, those guns were likely pellet guns Shaver used for his job. There are conflicting reports about what happened when police arrived at the hotel room, but in most accounts, the police claim Shaver refused to comply with orders, so officers felt threatened, and opened fire. He was unarmed. Sweet says she wasn’t contacted by Mesa police until four days after Shaver’s death. He leaves behind two young daughters. Sweet is trying to get a copy of the body cam footage from the incident.
- That isn’t even the only sad police shooting incident in Mesa so far this year. Last Thursday, Mesa police shot and killed Kayden Clarke, an autistic, transgendered man who had become something of a viral phenomenon last year after uploading a video showing how a service dog prevented him from hurting himself during a meltdown.
- In San Antonio, police are bunkering down in the face of criticism overthe shooting death of Antronie Scott. SAPD officers said they feared for their lives when Scott turned quickly toward them and ignored commands to show his hands. He was unarmed, and appears to have been holding a cellphone.
- In Palm Beach, Fla. — a hotbed of police shootings, allegations ofexcessive force, and other misconduct — a federal jury recently awarded $23 million to Dontrell Stephens, who was left paralyzed after a deputy shot him four times in 2013. The deputy had stopped Stephens for riding his bike the wrong way, then claimed to fear for his life when Stephens walked toward him. Stephens was armed with only a cellphone. The final check to Stephens is likely to be considerably smaller, however. Under Florida law, the state legislature must approve any award over $200,000.
- In other lawsuit news, the U.S. Court of Appeals for the First Circuitrecently upheld a federal district court judge’s denial of qualified immunity to the police officer who shot and killed 68-year-old Eurie Stamps during a botched drug raid on Stamps’s home. I wrote about the Stamps case here at The Watch about a year ago.
- After yesterday’s Super Bowl halftime show, Beyoncé called attention to Mario Woods, a 26-year-old man shot to death by five San Francisco police officers late last year. Woods was holding a knife, but video of the incident appears to contradict statements and reports from the officers involved.