Monthly Archives: August 2017

Search Warrant Means There’s Evidence? Not So Much….

The recent search warrant executed at Paul Manafort’s residence has generated a lot of speculation about how much evidence of criminal wrongdoing there must have been behind the search warrant affidavit justifying the search. But as the Washington Post  points out, what few systematic studies of the search warrant process there are suggest what most police officers, defense attorneys and  prosecutors will say: in most jurisdictions, it’s incredibly easy to get a warrant. Most judges exercise little to no scrutiny at all, and the few who do can be circumvented. You just take your affidavit to another judge. The federal process is described by former prosecutor Ken White:

“In the federal system, federal agents present search warrant applications to United States Magistrate Judges for review. Magistrate Judges aren’t nominated by the President and confirmed by Congress like United States District Court judges — they are appointed by other federal judges for set terms, and have a reduced level of authority and responsibility. They do a lot of the unglamorous day-to-day work of the federal judiciary.

The magistrate judge reviews the search warrant application and, almost always, signs the warrant approving it . . .  I think that magistrates can be a little rubber-stampy at times. But probable cause is a pretty low bar.”

As the article’s author points out, the impression that warrants for no-knock raids are carefully scrutinized and waged against only people for whom there is a significant amount of incriminating evidence just isn’t true.

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NY Times Discovers Unaccountability

The New York Times reports that of the 23 cases in which the Brooklyn DA’s Conviction Review Unit has asked judges to free defendants who were wrongfully convicted by their office, only a handful have asked for anyone to be held accountable. The Aug. 8 article by Alan Feuer recounts the case of Jabbar Wsahington, who spent 20 years in prison after a prosecutor intentionally withheld evidence and coaxed a witness into giving testimony that was purposefully misleading; in court, the chief of the Conviction Review Unit said: “There’s a lot of — perhaps blame is maybe the wrong word — but responsibility that goes around on that,” he said. Feuer says:

“It might seem like an obvious step for prosecutors seeking to reverse a tainted conviction to declare in open court who in law enforcement had a role in compromising the case. But assigning blame, at least in public, doesn’t happen often — even in troubled cases.”

One hopeful note in the article is that prosecutorial accountability has become an issue in the DA race in Brooklyn. Ama Dwimoh, one of six challengers seeking to defeat Eric Gonzalez, the acting district attorney, called for a sweeping review of how Mr. Gonzalez has handled bungled cases. And at the end of July, Ms. Dwimoh, who once worked in the district attorney’s office, accused her former employer of never holding anyone accountable for the many botched convictions it has helped overturn.

And, of course, accountability does not necessarily mean criminal liability. Professional discipline could be a powerful disincentive as well. And there is this:

“The accountability thing is often what stops people from embracing this process,” said John Hollway, a professor at the University of Pennsylvania Law School who studies wrongful convictions. “They think that accountability means punishment, but it can also mean improving the system.”

Mental Health Courts and the “Revolving Door”

A three-year study of a Florida mental health court program found that the rate of recidivism dropped “significantly” after participants completed the court-ordered treatment program that the court offered as an alternative to jail.

The study’s authors, Julie Costopoulos and Bethany Wellman of the Florida Institute of Technology (FIT) suggested that the findings demonstrate the effectiveness of collaborative courts in helping end the “revolving door” which cycles many mentally troubled individuals between jail and the streets:

“The ‘revolving door’ has been exhaustive of institutional resources, resulting in such a poor system of treatment that many argue that the system …treats offenders with mental health challenges to the extent that recidivism is inevitable,”

The study followed 118 participants in an unidentified Florida mental health court. Three months after release, 90% had not been rearrested. After six months, the number dropped to 81% remaining free of any charges; and three years after release, 54% had not recidivated.

Perhaps almost as significant, the study found that participants were typically re-arrested  for much lesser offenses than those which originally sent them to the mental health court.

70 Million Jobs

Have a criminal record? Need a job? You are not alone – according to 70millionjobs.com, there are 70 million Americans in the same situation. The website, created by a former Wall Street trader incarcerated for securities fraud, acts as a clearing house for job applicants and employers transparent about criminal record pasts. The principles of the organization:

• That having served a sentence, a person should be able to get on with his or her life.

• That past mistakes should not define life in the future.

• That all people have a right to a good job, decent housing, competent medical care and other human needs.

• That we will run our business transparently, with integrity and compassion.

• That the formerly incarcerated deserve the right to vote.

• That all folks that have done time are our brothers and sisters and that we’re stronger when we work together.

Another Call For “Open File”

A lengthy article by Emily Bazelon in the NY Times Magazine examines in detail the case of Noura Jackson, a Tennessee woman convicted of murder after prosecutors withheld exculpatory evidence. Bazelon uses the case to illustrate a larger policy discussion of the dangers of a “win at all costs” culture in DA offices, the ways in which withholding evidence may become ingrained in the training oil new DA’s, the lack of meaningful consequences for prosecutorial misconduct such as withholding evidence. The article concludes with a review of the movement towards “open file” laws and policies, including the Michael Morton case that resulted in the prosecution of a former DA and sitting judge, and the implementation of an open file policy in the DA’s office n Tennessee   where Noura Jackson was prosecuted.