Monthly Archives: December 2017

Annals of Prosecutorial Accountability

The Washington Post reports on an additional 8,000 Massachusetts criminal convictions to be dismissed because they were based on analysis by lab chemist Sonja Farak, who was both testing and consuming drugs seized by the police for eight years. This follows  21,500 drug convictions erased earlier in 2017 because of the actions of lab chemist Annie Dookhan, who admitted contaminating, falsifying or not testing drugs in her Boston-area lab over eight years. Two prosecutors handling those cases, Anne Kaczmarek and Kris Foster, were found to have withheld evidence that showed that Farak’s drug-fueled escapades, including cooking and smoking drugs in the state lab in Amherst, Mass., had lasted for eight years, not six months as they initially claimed. The attorney general’s office prosecuted Farak after she was arrested in January 2013 — and Farak pleaded guilty in January 2014 — but Kaczmarek and Foster repeatedly refused to provide either prosecutors or defense attorneys with Farak’s own notes and records showing she had been in drug treatment for years.

The judge in the Farak case concluded earlier this year that the two prosecutors committed “intentional, repeated, prolonged and deceptive withholding of evidence from the defendants” and that “their misconduct evinces a depth of deceptiveness that constitutes a fraud upon the court.” Their punishment: “The two prosecutors, former assistant attorneys general Anne Kaczmarek and Kris Foster, have since moved on to higher-paying jobs elsewhere in the state government.”

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Year-End Review of Voter Suppression, Voter ID Laws, from NY Times

Today’s NY Times article “Black Turnout in Alabama Complicates Debate on Voting Laws”     reviews recent research on the effects of voter ID laws in recent elections, with a particular emphasis on the Doug Jones victory in Alabama. As the Times points out, research on voter ID laws in Texas, Wisconsin and other states has been ambiguous about how and to what extent those laws actually suppress turnout. For example Eitan Hersh, a Tufts University political scientist who contributed to the analysis of Texas’ strict voter ID law, said research indicated that voter ID laws could alter very close elections but might not be as influential as some critics claim.

“These laws are complicated to assess,” Mr. Hersh said. “Alabama was a place where there was a lot of campaigning, and when campaigns liven up, you have a lot of mobilization efforts” that could offset the effect of an ID law on turnout.

One recent study, “Voter Identification Laws and the Suppression of Minority Votes” concluded that the historic turnout gap between white and minority voters increased sharply — as much as fivefold — in states with the strictest voter ID laws, producing a “clear partisan distortion” favoring Republicans.

In Texas, where federal courts have invalidated parts of one of the nation’s toughest ID laws, a detailed analysis concluded that 3.6 percent of white registered voters in Texas lacked any legally acceptable ID — and 5.7 percent of Hispanic voters, and 7.5 percent of African-Americans. But among more likely voters who cast ballots in the 2010 and 2012 elections, only 1.4 percent lacked a valid ID. An estimated 600,000 registered voters lacked a photo ID that qualified them to vote under the law.

Still other studies in Texas and Wisconsin concluded that confusion over voter ID laws meant that more people who actually had valid IDs but believed they did not stayed home on Election Day than did voters who actually lacked identification.

Prosecutor’s Remorse

A Texas prosecutor has a change of heart about the death penalty she argued for and won 20 years ago against a man who did not kill anyone. In a letter to the prison parole board asking for clemency, Lucy Wilke said that “the penalty now appears to be excessive.”  The defendant in the case, Jeff Wood, was convicted and sentenced to death in a 1996 convenience store murder — he was sitting outside in the truck when his friend, Daniel Reneau, pulled the trigger that killed clerk Kriss Keeran. As an accomplice, he was sentenced under Texas’ felony murder statute, which holds that anyone involved in a crime resulting in death is equally responsible, even if they weren’t directly involved in the killing.

Part of Wilke’s change of heart stems from psychiatric testimony she presented at trial to prove that Wood posed a future danger. To obtain a death penalty verdict under Texas law a jury has to unanimously agree that he or she would present such a danger. At the trial in 1998 Wilke put on the stand a psychiatrist, Dr. James Grigson, who was known as “Dr. Death” and almost always found defendants would be a future danger. The Texas Court of Criminal Appeals had previously stopped Wood’s execution last year and sent the case back to the trial court in Kerr County to review Wood’s claim that a jury was improperly persuaded to hand down a death sentence because of Grigson’s testimony. Wilke now says  she was unaware at the time of the trial that Grigson had been expelled from the American Psychiatric Association and Texas Society of Psychiatric Physicians: “Had I known about Dr. Grigson’s issues with said organizations, I would not have used him as the State’s expert witness in this case on the issue of future dangerousness,” she wrote.

Crime Rates in LA in the “Justice Reform Era”

The Center on Juvenile and Criminal Justice has published an interesting report on crime trends in Los Angeles County during what they call the “justice reform era,”  from 2010 to 2016, with major changes – Public Safety Realignment, Proposition 47, and Proposition 57 – in California’s justice system. The main findings:

 

  • From 2010 to 2016, roughly half of LA County’s 89 jurisdictions showed an increase in crime (53%) and half showed a decrease (47%). Most jurisdictions elsewhere in California (259 of 422) showed decreases in their crime rates.
  • The City of Los Angeles, which encompasses over 40 percent of the county’s population and over half its reported crimes, strongly impacts LA County crime rates. While Los Angeles County showed a modest increase in total crime (5%) from 2010 to 2016, this was made up of extreme variation among its 89 jurisdictions.
  • The jurisdictions showing decreased crime from 2010 to 2016 had higher average crime rates at the beginning of the reform period than jurisdictions showing increased crime. This suggests that some jurisdictions, especially those that began with elevated crime, have developed successful policies and practices to improve public safety on a local level.

The overall conclusion: crime patterns in Los Angeles County, as well as the rest of the state, result from local policies and practices rather than statewide reform.

 

Prosecutor in NY charged for withholding evidence

NY State AG Schneiderman has filed criminal charges against a county district attorney over his handling of a grand jury investigation into the fatal police shooting of an unarmed motorist last year. According to the NY Times, Joel Abelove, the district attorney in Rensselaer County, was charged with a single felony count of perjury in the first degree and two counts of official misconduct, a class A misdemeanor.

The case against the prosecutor stems from the death of a driver who was shot after a car chase involving a traffic stop on suspicion of drunken driving. The chase ended with a Troy police sergeant, Randall French, shooting the driver eight times, killing him, after the officer was pinned between his cruiser and the driver’s vehicle.

Shortly after the shooting, the NY Attorney General sent in a “Special Investigations and Prosecutions Unit” to look into the driver’s death. Rather than cooperating with state investigators, Mr. Abelove is alleged to have “quickly and surreptitiously presented the case to a grand jury,” according to Mr. Schneiderman’s office. Mr. Abelove then is accused of having withheld evidence from the grand jury, leading to no charges being brought against the police officer. The district attorney had also conferred immunity upon Sergeant French before the grand jury voted, effectively protecting the officer from any potential future prosecution in the killing. Finally, in October, Mr. Abelove lied about another immunity case in testimony to a separate grand jury, according to the indictment filed in Rensselaer County Supreme Court.

“Unchecked power that is, quite frankly, frightening.”

That is a judge’s description, as reported by the NY Times, of Justice Department’s actions in holding an American citizen in military custody in Iraq for 11 weeks without allowing him to talk to an attorney. According to the Times, the detainee refused to talk to F.B.I. interrogators without a lawyer after he was warned of his Miranda rights to remain silent and have a lawyer present,

“The individual stated he understood his rights, and said he was willing to talk to the agents but also stated that since he was in a new phase, he felt he should have an attorney present,” the department said in a court filing Thursday afternoon. “The agents explained that due to his current situation, it was unknown when he would be able to have an attorney, and the individual stated that it was O.K. and that he is a patient man.”

The filing is part of a habeas corpus action filed by the ACLU asking for access to the detainee and a ruling that his continued indefinite detention without charges is illegal. The Justice Department has argued in part that the group has no standing to bring the petition because it has no relationship with the prisoner nor permission from his relatives to represent his interests in court. The judge in the case rejected this argument, saying it was  “circular reasoning” since the government’s own actions prevented him or his relatives from having contact with the lawyers.

The judge then made the comment about frighteningly unchecked power, describing the government’s position as saying it could “snatch any U.S. citizen off the street and hold him as an enemy combatant in another country” indefinitely without letting him or her talk to a lawyer.